Standing Committee B

[Mr. James Cran in the Chair]

Criminal Justice Bill

Clause 100 - Cases where a witness is unavailable

Amendment proposed [this day]: No. 523, in 
clause 100, page 58, line 38, at end insert
'but only after such steps as may reasonably be taken to address that fear have been taken'.—[Mr. Heath.] 
 Question again proposed, That the amendment be made.

Michael Wills: Before we broke, I had just begun to say how sympathetic we were to the instincts that prompted the amendment. Of course, we must do everything that we can to protect witnesses. That is the whole purpose of subsection (2)(e). It will replace and extend the existing powers to admit statements of frightened witnesses under the Criminal Justice Act 1988. The provision plays an important part in ensuring that the evidence of frightened witnesses can be heard by the court where appropriate.
 The amendment, however well intentioned it is, raises the legitimate concern that the provision to admit statements of frightened witnesses should not be viewed as the only method of dealing with the problem of frightened witnesses. As I have said, we share that view and we see the provision as one of a range of options available to the court for dealing with frightened witnesses. I hope that the hon. Member for Somerton and Frome (Mr. Heath) can accept that we are on the same side to that extent. However, we do not believe that the amendment is necessary. 
 Leave can be granted only where it is in the interests of justice that the evidence be admitted. If, therefore, the witness's fears could be satisfactorily addressed, thus enabling him or her to give oral evidence, the interests of justice would not be served by admitting the out-of-court statement. The clause also makes specific reference, in subsection (4)(c), to the possibility of fear being addressed by a special measures direction under section 19 of the Youth Justice and Criminal Evidence Act 1999, which includes the use of measures such as the giving of evidence behind a screen, or the use of live video link. 
 The amendment would create a complex scheme. The court would first have to satisfy itself that all reasonable steps had been taken to address the fear, and then satisfy itself that the admission of the evidence was in the interests of justice. We believe that it is more desirable that any consideration as to whether the situation is best addressed in another manner is dealt with under the interests-of-justice test, because the alternative would be that even where it is 
 clearly in the interests of justice to admit the statement from a frightened witness, the court may be prevented from doing so unless all reasonable steps have been taken to address the fear. 
 I really do not want the hon. Gentleman to think that, because I am saying all this, we are not wholly sympathetic to the sentiment that prompted his amendment, because we are. We know that much more needs to be done to encourage reluctant witnesses to give evidence; it is one of the Government's priorities, and we have made that clear repeatedly. The issues have been examined by an interdepartmental working group, and ''Speaking up for Justice'', the report that it produced, made recommendations to improve the treatment of vulnerable and intimidated witnesses, including measures to assist in identifying the needs and wishes of witnesses and giving them greater support for the trial and the hearing. We will bring measures forward—there should be no doubt in the hon. Gentleman's mind about that. We are wholly sympathetic—

Graham Allen: Will my hon. Friend also accept that an advantage of doing it this way is that we could use police support officers? We could use civilians and others, provided that the rules are very clear. That will free up police officers to do the jobs that we would all like them to do, and they can do some of the evidence-taking or the live video links.

Michael Wills: Very much so. I am grateful to my hon. Friend for his characteristically wise and helpful intervention.
 I hope that I have said enough to reassure the hon. Member for Somerton and Frome that we are wholly in sympathy with the motives behind the amendment, but we think that he may end up by complicating the system rather than helping the victims and witnesses that he wants to help, as we do. I can assure him that we will bring measures forward. 
 Before the break, the hon. Member for North Down (Lady Hermon) raised an important question, which I want to address. As I understood it, her concern was essentially that the change might make hearsay more readily admissible in these particular circumstances. The Law Commission considered that issue carefully in its final report on hearsay, and concluded that the fact that a statement was not made to a police officer should not necessarily make it inadmissible. 
 I understand the concern that prompted the hon. Lady to raise the issue. It is a genuine concern, but on balance the Law Commission concluded that this was an unnecessary hurdle for the defence to overcome. We pursued that approach because we believed that it could put the defence at a distinct disadvantage if a defence witness had to be interviewed by a police officer or an equivalent person charged with a duty to investigate offences before the statement could be admitted. However, I emphasise that I do understand the concerns about too readily admitting hearsay, and I remind the Committee that there are safeguards under subsection (4), which we believe to be adequate. 
 I draw the hon. Lady's attention to them because I hope that they may give her some comfort in this respect. 
 I hope that the amendment can now be withdrawn.

David Heath: I welcome you to the afternoon sitting, Mr. Cran, and wish you a happy birthday. What better place could there be to spend one's birthday than in the Criminal Justice Bill Committee?
 I am most grateful to the Minister for the time and trouble that he has taken to explain his response to the amendment. As he says, there is no difference between us in our intent. His words were very helpful in setting out what would be expected of the judicial and policing authorities in dealing with the case of a frightened witness. I do genuinely accord with the Government's proposals in this area, which will be very timely. I hope that we may be able to engage with the Government constructively in identifying those areas that need further support. 
 I am also grateful for the response that the Minister gave to the hon. Member for—is it South Down or North?

Lady Hermon: Definitely North.

David Heath: I do apologise. The Minister's response shed quite a lot of light on the proceedings.
 I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Dominic Grieve: I beg to move amendment No. 410, in
clause 100, page 58, line 40, leave out 'or of financial loss'.
 I, too, wish you many happy returns, Mr. Cran.

Humfrey Malins: How old is he?

Dominic Grieve: That is not a proper question to ask.
 The amendment concerns the same issue, but from a slightly different angle. There is no disagreement that those who are in fear constitute a proper exception to the hearsay rule, allowing statements to be read. However, the clause says that 
'' 'fear' is to be widely construed and (for example) includes fear of the death or injury of another person''—
 I can follow that easily— 
''or of financial loss.'' 
The amendment seeks to delete those last four words. 
 I should make it clear that this is a probing amendment, certainly at this stage, but I think that the Minister will grasp without too much difficulty why that issue must give rise to some concern. One hopes that, in a trial in court, witnesses normally attend voluntarily. If they do not attend voluntarily, witness summonses are issued upon them. There may be a variety of reasons why they choose not to turn up. They may be frightened of intimidation, or they may be concerned that their family may be frightened, which gives rise to a perfectly clear exception to the hearsay rule. In my experience, the witness's not turning up in order not to lose a day's earnings has 
 never been given as a justification for allowing the statement to be read. 
 There is an important difference between the two. The first is outside the control of the witness—he has been put in fear. The second case concerns the commercial priorities of the witness; he chooses between his desire to participate in the administration of justice and his desire to make money. Apart from anything else, if a witness were brought to court having indicated that he did not want to go because he did not want to lose a day's work, that would normally be a subject of cross-examination by counsel, if they disagreed with what he said, about his attitude. Counsel would suggest that he was not interested in the search for the truth and could not really care less about the consequences of giving or not giving evidence in the context of whether someone might be convicted. It would clearly need to be examined. As worded, the clause worries me. It seems to introduce a device by which the evidence of such a witness would be admitted by means of hearsay without more ado.

Humfrey Malins: I am following my hon. Friend's argument very carefully. Does he agree that the clause could go even wider—to financial loss not just to the witness but, if the words of subsection (3) were to be read closely with those in the earlier part of the clause, to another person? It is terribly wide.

Dominic Grieve: Well, yes. Take the case of someone whose employer has said that she does not want him to give evidence because she would lose money if he were not working in her shop. He might stay away, and escape the police who were sent to look for him after a witness summons had been issued, as sometimes happens. Thereupon, his evidence would be admitted. What worries me is that there will be no means whereby a proper examination can be carried out, first about the truth or otherwise of what he has said, and secondly about his general attitude. That is very important in making an assessment as to whether a witness is credible.

Graham Allen: Does financial loss mean someone pouring paint stripper on the car of a witness? That would incur significant financial loss, and is a common practice, unfortunately, in the area that I represent.

Dominic Grieve: The hon. Gentleman makes a very good point. I should have thought that that would come under fear, and my hon. Friend the Member for Woking (Mr. Malins) whispers that he agrees. That is intimidation, and I am happy with the principle that an intimidated witness may have his evidence read. It would be a usual safeguard, and it already happens under certain circumstances. However, the wording is much too wide. I fear that it will be an open sesame formula for prosecuting counsel to argue that because Mr. Bloggins cannot come to court—he has said down the telephone that he is too busy and does not want to lose money—his statement will go in. It should not. I hope to have a positive response from the Minister, if necessary about the willingness to rewrite the clause.

David Heath: I entirely understand the point made by the hon. Member for Beaconsfield (Mr. Grieve). I would also understand a response that there are many
 forms of intimidation, some of which do not involve fear for safety of life or limb, but which have an economic bearing on the livelihood and well-being of the person being intimidated. At present, I believe that the wording is too loose, but I understand the need for the provision to encompass economic as well as physical threats. I hope that the Minister will take the opportunity to reflect on that, and to consider whether there is a better way to express what I suspect he is trying to say in the Bill.

Michael Wills: First, Mr. Cran, I apologise for being remiss in not wishing you a happy birthday. I join colleagues in wishing you a splendid day.
 I understand the concern expressed by hon. Members, but they may not have read the clause with the necessary care. We believe that the concerns expressed by the hon. Member for Beaconsfield are covered by subsection (4). The clause makes provision for the use of evidence in out of court witness statements, with the leave of the court, where the witness is too frightened to testify or to continue to testify, and leave can be given only if it is in the interests of justice. That covers the point raised by the hon. Gentleman. He may ask why we included such a provision. 
 The clause does not attempt to define what constitutes a sufficient basis for fear. Instead, it states that fear should be interpreted widely, and it gives examples such as 
''fear of the death or injury of another person or of financial loss'' 
as sufficient grounds for fear. The clause uses wording suggested by the Law Commission in its draft Bill, and we agree that although it is not possible to lay down a rigid categorisation of what might give rise to fear, because human beings are infinitely various, and circumstances similarly, so we ought to have regard to that infinite variety of human experience. It is nevertheless helpful that the court should have an indication of the breadth of the term. 
 The amendment seeks to remove the fear of financial loss from the clause, but we believe that it is a helpful guide for courts in deciding what may properly be said to constitute fear. If we removed that provision, it would mean that the courts would be able to hold that financial loss was specifically not intended to be covered by Parliament under the scope of fear. We believe that that is highly undesirable.

Humfrey Malins: Does the Minister therefore think that it is in the interests of justice for the witness to have his statement read on the ground, for example, that he would lose a day's pay? It is a completely new precedent; will he give us an example?

Michael Wills: The hon. Gentleman, with his most distinguished legal background, would not expect me to make a judgment like that in Committee. He is nodding in agreement. I ask him to consider what would happen if we removed the provision. I shall give an example, because it is important that we should have some idea of the sort of circumstances. I cannot answer his specific question; it would be for the court to decide in the light of the relevant circumstances. We
 can all form our own judgment about whether the graphic description that the hon. Member for Beaconsfield gave us would be in the interests of justice.
 I shall develop the example given by my hon. Friend the Member for Nottingham, North (Mr. Allen) in a moment, but I shall first spell out what the Law Commission said in its report, which is the basis of the provision. The Law Commission said: 
''we find it hard to envisage a situation where a court would be minded to admit the statement if it had the power to do so, but where it ought to be precluded from doing so because the particular kind of fear from which the witness was suffering was not the kind that ought to suffice.''
 That was the Law Commission's view. 
 As an example, to spell the matter out further, imagine a local corner shop in a troublesome estate. Many of us have such shops in our constituencies. The owners of the shop might have a well founded fear that by coming forward to give evidence they will lose customers. The matter is not only about pounds and pence. Although it could be construed as financial loss, the problem goes right to the heart of that corner shop owner's livelihood and way of life. We think that it would be wrong to try to preclude the courts, which would, if we were to agree to the amendment, be able to hold that Parliament did not intend financial loss to be covered.

Paul Stinchcombe: I support every word that the Minister says. I shall give him two further examples: one from my political life and one from my legal life. In my political life, I was told just a few weeks ago that a local business opposite my offices was threatened with closure following an incident. That business had been going for 100 years. In my legal life, I came across a situation in which a villain routinely threatened to fuse the lights in, for example, department stores, in order to affect their revenue so greatly that they would be intimidated.

Michael Wills: I am very grateful to my hon. Friend. He gave two good examples of the sort of cases that we want the Bill to cover.

Dominic Grieve: I do not disagree with what the hon. Member for Wellingborough (Mr. Stinchcombe) said one bit. However, there is a huge difference between that and mere inconvenience with financial loss that might prevent someone from attending court. Although I accept that subsection (4)(d) refers to ''any other relevant circumstances'', the provisions as currently drafted are extraordinarily wide, and they do not need to be.

Michael Wills: We go to the heart of the question of what we allow the courts. We must strike a balance between clarity and flexibility, and we are endeavouring to do so. Subsection (3) gives some examples of the sorts of things that we are talking about, such as
''fear of the death or injury of another person''.
 Everyone who has spoken on the matter agrees that that is legitimate, and the amendment does not seek to change that. How do we cater for the sorts of examples that my hon. Friend the Member for Wellingborough gave? We have based our attempt to do so on what the 
 Law Commission has done, in all its wisdom and after all its work. 
 I ask the hon. Member for Beaconsfield to consider the seriousness of the cases in question. We are not talking about a matter of a few pounds and pence, but significant fears that can arise about damage to one's whole way of life. We must find a way to cover that in the Bill. We have not only provided safeguards in subsection (4)(d), but elsewhere in subsection (4), which says that 
''the statement ought to be admitted in the interests of justice''.
 We believe that that is an adequate safeguard against any trivialisation of the proposition. I invite the hon. Gentleman to consider that while my hon. Friend the Member for Wellingborough speaks.

Paul Stinchcombe: Again I can reinforce the argument that the Minister is making. There is a further protection in the clause, in that the word ''fear'' is used, which connotes something rather different from inconvenience.

Michael Wills: Again I can only entirely agree with my hon. Friend.

Dominic Grieve: It may be necessary for me to develop my arguments in reply. I tell the Minister that, even if the amendment were not agreed to, it would be perfectly possible to insert another subsection that said that fear could not be fear of financial loss stemming merely from the inconvenience of having to attend court. That is the point. I fully accept that one can have a genuine fear of financial loss that results from intimidation. I want that to be covered. However, as the provisions are drafted, the use of the words ''financial loss'' in subsection (3) is most unfortunate. I could say to the Minister, ''I fear that, by going to court on Tuesday, I shall lose my contract to work in someone's house and I shall lose a lot of money.'' That would not be a legitimate ground for allowing that statement to be read, and it would not be legitimate in any circumstances.

Michael Wills: We are reaching the point when we can curtail this discussion, but let me have one last attempt to persuade the hon. Gentleman that his concerns—real concerns, which I do not regard as trivial, as he is articulating something that is precious to our system of justice—are adequately catered for. As my hon. Friend the Member for Wellingborough has said, fear is quite different from inconvenience. We have made it clear that the provision will apply only when that is in the interests of justice. The actual circumstances that arise in court may be more complex than the situation described by the hon. Gentleman, but I find it difficult to imagine how any court could regard it as in the interests of justice for the provision to apply in the specific circumstances that he outlined. We must be careful about how we fetter the discretion of judges to apply their wisdom to the infinite variety of human experience.

David Heath: I do not want to start the Minister on a whole new line of argument, because I am finding his current argument persuasive, but he referred several times to a well-founded fear. That makes me wonder
 whether the fear must be well founded, genuine and reasonable or whether a fear that is real to the person but which is not based on anything that is reasonable or well founded would be sufficient. Or would that come under subsection (2)(b), which covers mental condition?

Michael Wills: I was not conscious of using the words ''well founded.'' The court must decide whether it would be reasonable. I return to the safeguard that we have included about the interests of justice. We must be very careful about prescribing what constitutes a reasonable ground for fear because that will change according to the circumstances. Obviously, the life history and experience of an individual will determine what is a well-grounded fear in the case of that individual. What may be a well-grounded fear for one person in one particular environment may be quite different from the well-grounded fear of another individual. I urge caution about being too prescriptive. Throughout, we must strike a balance between clarity and flexibility. We have endeavoured to strike that balance in the clause.

David Heath: I am not going to test the Minister any further. It just occurs to me that there will be circumstances in which a fear is ill founded and based on superstition, but it will still prevent a person from coming to court to give their testimony. I am trying to ascertain whether the court would accept, as grounds for admitting hearsay evidence in that form, the fact that a person was scared stiff that the sky would fall on their head if they went anywhere near the Old Bailey on that day.

Michael Wills: I am not aware that the sky falling on someone's head would constitute sufficient grounds.

David Heath: It would cause injury.

Michael Wills: It may.
 I think that we have exhausted all the possibilities. I hope that I have reassured hon. Members that there are adequate safeguards in place and that we have tried to cater for the sorts of anxieties that may damage the interests of justice. In the light of that, I hope that the amendment will be withdrawn.

Graham Allen: I wonder whether the clause covers smart-Aleck lawyers who keep adjourning and deferring cases so as to drive witnesses to distraction. The witnesses in those cases do not lose one day's pay; they suffer the indignity of not knowing when they will return to court, then there is another adjournment and they lose another day's pay. I do not imagine that the clause covers that pernicious practice, which obstructs the course of justice.

Michael Wills: My hon. Friend makes a good point.
Mr. Malins rose—

Michael Wills: I fear that every time I stand up, I open up a new area of argument. However, my hon. Friend may rest assured that we shall introduce measures to deal with unnecessary and unwelcome obstructions to the course of justice.

Humfrey Malins: I say to the hon. Member for Nottingham, North, whose views I respect on a
 broad range of subjects, that he is entirely wrong. Lawyers do not have the power to adjourn cases indefinitely in order to distract witnesses. Judges have the power to adjourn a case and will never do so for an improper reason. It is effectively a defamation of the whole Bar and the solicitors' profession to suggest that they would have such a motive.

Michael Wills: We all live and learn. I hope that after this interesting and wide-ranging discussion, the hon. Gentleman will feel free to withdraw the amendment.

Dominic Grieve: The Minister has persuaded me that there are safeguards within the clause that are designed to steer the judge towards the correct decision when he has to make it. However, that does not get away from the fact that the clause is badly drafted. It need not be drafted so badly in order to achieve its desired effect. Take the matter of fear and the context in which it has been placed. I think that the Minister is aiming to address the fear of a potential witness that by going to court to give evidence he might incur unpleasant consequences: he might be adversely targeted in an improper and unlawful fashion, whether by finding paint stripper on his car, having his windows broken at night, seeing his children or a relative intimidated or by being intimidated—or worse—himself. No problem—there is complete unanimity on the issue. However, people's fears—in the context of going to court to give evidence—might be quite unrelated to such considerations. They might have nothing to do with the possibility of terrible consequences. It might be that the individual has persuaded himself that he will be struck by lightning if he walks across the street to the courthouse, even though it is broad daylight. That might lead us to the question of that person being too ill to attend; perhaps we shall get him in by another clause. Assuming that he is not certifiably ill, that is an unreasonable fear and one that the court should not countenance and use as an excuse for allowing that evidence in. Another example, which I gave earlier, is fear that by doing one's duty and giving evidence, one might lose out financially, not as a result of action by the defendant or another member of the public, but in the ordinary course of events, through having to take a day off work. That is a real fear—lots of people have it. They do so for jury service, which is one of the reasons why people have avoided putting their names on the electoral register, as hon. Members will know. Constituents tell us that they do not want to be registered because they do not want to be called up for jury service.

Michael Wills: Will the hon. Gentleman answer two questions? First, does he accept that there is inherent difficulty in legislating for every circumstance of the human experience and trying to prescribe too tightly what is a reasonable fear? Secondly, does he accept the proposition that if we were to accept the amendment, it would lead to a situation in which, in relation to financial loss—no matter how severe or how traumatising for the individual; not just a day's pay, for example, but the livelihood and entire way of life of a corner shop owner, as in the example given by my hon. Friend the Member for Wellingborough—the courts would be able to hold that Parliament had not intended that circumstance to be covered.

Dominic Grieve: I do not accept the proposition, for this reason: it is not necessary. There are two approaches. I accept that removing ''or of financial loss'', as the amendment proposes, could have that consequence. However, that is unlikely, as a court would have no difficulty in deciding what constitutes fear. When discussing it with the Minister, I find that part of the problem is that the Government's drafting has tried to be too prescriptive. Had clause 100(3) simply said, ''for the purposes of subsection (2)(e) 'fear' is to be widely construed'' full stop, the problem would probably go away.

Michael Wills: It would get worse.

Dominic Grieve: No, I do not think that it would. The attempt at definition immediately creates problems. The words ''includes fear . . . of financial loss.'' are not necessary.

Michael Wills: It says ''(for example)''.

Dominic Grieve: The phrase
''and (for example) . . . financial loss''
 is not necessary. I wish the Minister would reconsider the clause and take out the reference to financial loss. In fact, subsection (3) could be removed entirely and the courts would not have the least problem in interpreting what they have to do or the Minister's intentions. A real fear would be a threat such as ''The entire estate will boycott your shop if you give evidence in this case.'' Losing a day's wages or a contract, however important, does not constitute real fear. 
 As I say, there are two approaches. One is to try an extra definition to make the point clear, which I have not attempted to do as I merely wanted to highlight the issue. The other is to remove most of subsection (3) and tell the court that ''fear is to be widely construed'' full stop. A judge or lawyer reading that will immediately realise that it goes further than fear of immediate physical consequences. I fear, if I may use the word, that in trying to provide a definition the Minister has gone too far. I will not press the amendment to the vote, but I urge him to discuss the matter with parliamentary draftsmen to see whether something better cannot be arrived at on Report. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 100 ordered to stand part of the Bill.

Clause 101 - Business and other documents

Question proposed, That the clause stand part of the Bill.

Dominic Grieve: Will the Minister tell me, when we consider the clause, what change there is from existing provisions on business documents?

Michael Wills: Broadly, none. However, let me spell out the position for the record. The clause broadly corresponds to the present position for admitting business records and other documents under section 24 of the Criminal Justice Act 1988, subject to a small drafting improvement recommended by the Law Commission. It clarifies that in cases where a
 statement has been prepared with an eye to criminal proceedings, it would be admissible only if the witness who supplied the information, rather than the maker of the statement, is unavailable to give evidence.
 As a class of evidence, business documents are likely to be far more inherently reliable than many other types of evidence before the courts. In many cases, there could be no better evidence than a business document compiled by someone who was knowledgeable about the matters in it, and it is widely accepted that business records constitute a particularly necessary form of evidence in many cases. We believe that reliable business documents should be automatically admissible. As a safeguard, however, the court also has the power to direct that the statement shall not be admissible as a business document when there is reason to doubt its reliability. 
 I hope that I have answered the hon. Gentleman's question. 
 Question put and agreed to. 
 Clause 101 ordered to stand part of the Bill.

Clause 102 - Preservation of certain common law categories of admissibility

Humfrey Malins: I beg to move amendment No. 411, in
clause 102, page 61, line 38, at end insert—
'Recent complaint{**qc**}
9 Any rule of law under which in criminal proceedings for an offence of a sexual nature, evidence of a recent complaint is admissible as evidence of the facts complained of.'.
 This is a gentle probing amendment. The clause deals with the preservation of some common-law categories of admissibility. I utterly understand the matters that are set out in the clause, but there is, as the Minister knows, the old doctrine of recent complaint. In sexual cases—it used to be in rape cases in particular—there was a common-law evidential point that related to recent complaint, which was in itself an evidential factor that the judge would direct the jury to take on board. I wonder whether the recent complaint doctrine is thought to be appropriate to be encompassed in the clause or whether there is a particular reason why it should not be.

Michael Wills: I am grateful to the hon. Gentleman for tabling the amendment, because it gives me a chance to clarify the exact purpose of the clause and how the Government are approaching the issue. Broadly, there is not much difference in terms of principle, but the approach is slightly different and I will spell out why the Government have adopted this course. The clause does not make provision for the common-law exception to be preserved because clause 104 will make separate provision for such evidence to be admitted. If the hon. Gentleman looks at clause 104(4) and (7), he will find that they rationalise that area of law. They allow a prompt complaint of any offence to be admitted in certain circumstances. Where the statement is admitted, the use to which it can be
 put is not restricted to supporting the credibility of the witness; it can also go to the truth of the matters in the complaint.
 The restriction of the exception to sexual offences is difficult to justify because evidence of a recent complaint may be of value in any case. Furthermore, the current common-law rule means that juries are given very complicated directions about the uses to which they can put evidence of a recent complaint. For those reasons, and following the recommendations of the Law Commission, we decided not to preserve the existing common-law exception, but to create a new exception that is applicable to all offences but is essentially based on the same rationale. I hope that, in the light of that reassurance, the hon. Gentleman will withdraw the amendment.

Humfrey Malins: The Minister has been typically helpful. I understand the explanation and it entirely satisfies me. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 102 ordered to stand part of the Bill.

Clause 103 - Inconsistent statements

Question proposed, That the clause stand part of the Bill.

Dominic Grieve: The clause gives me quite serious concern and I cannot allow the matter to pass. I contemplated tabling an amendment, but there is nothing to amend. It is all or nothing. I would be grateful if the Minister could tell me the rationale behind the approach that has been taken. In criminal proceedings, it is unfortunately very common for witnesses to come into the witness box and give evidence that is at variance with the proof of evidence or statement that they have given to the police. From a prosecutor's point of view—the situation can also arise in relation to the defence—that can raise difficult issues about what should be done. The prosecutor may decide to live with the statement as it is given. In that case, the inconsistencies may be picked up by the defence counsel if he wishes to do so, although if what is said in the witness box, as opposed to the statement on paper, turns out to be favourable to the defence, the defence counsel may choose to keep quiet.
 If the prosecutor considers the statement given from the witness box to be hostile to his case, the alternative is to ask for the witness to be treated as a hostile witness and to put his previous inconsistent statement to him. That is usually effective in totally discrediting the witness in the eyes of the jury and the court. It is highlighted that the witness previously said that he saw the defendant go into the shop from which—it is alleged—he was going to steal, but the witness now says that he never saw him enter the shop, and that in fact he was miles away at the time and cannot help the court at all. 
 There was even an occasion in my early days at the Bar when I went to a court in Surrey for a serious grievous bodily harm committal hearing. A group of skinheads had beaten up an Asian. The police had 
 arrested all at the scene and taken them to the police station. They took seven or eight statements—all of which may have been the truth, although one can never tell—to the effect that two of the group had done the beating up. Therefore, two of them were charged. 
 We had an old-style committal—the skinheads went into the witness box and one after the other said that he did not remember seeing anything, could not remember what had gone on, had not seen the two defendants and had not been near the scene having wandered off a bit earlier. Although we managed to get the defendants committed, the case could not proceed at the Crown court. 
 The effect of clause 103 will be not only that a prosecutor will be able to put a previous inconsistent statement to the witness, but it will be possible to ask the court to treat as the witness statement the earlier statement on which the prosecution—and the defence, for that matter—wishes to rely. The Minister will interrupt me if I have misunderstood the position. 
 I suppose that we shall be saying to the jury, ''Well, you have heard the evidence in this case. You saw that Mr. Bloggs went into the witness box and said that he had never seen the witness anywhere. However, you will note that when he gave a statement to the police nine months ago, he said specifically that he saw the defendant go into the shop. You will obviously want to weigh up that evidence, but if you choose to do so, you may decide that the earlier statement that Mr. Bloggs gave to the police rather than what he said in the witness box is the statement on which you can and should rely. If you decide that what he was saying then was the truth, you may decide to accept it.'' 
 If I have understood the position correctly, we are embarking on a course of action that carries amazing risks. Should a witness's statement be discredited, it is discredited; he has no credit. Even though it might be convenient for the prosecution—or the defence—to say that the witness's evidence should still be considered, and that what the witness refused to say in the witness box but said earlier should be treated as evidence, how can we properly invite a jury to consider that evidence? That departure goes much further than is reasonable or rational in trying to do justice. Although it may be inconvenient to have hostile witnesses, if somebody is so discredited that he gives contradictory evidence in the witness box from that he gave previously, that evidence must be treated as worthless.

David Kidney: Might this not always be a situation in which the previous inconsistent statement discredits the witness, yet that witness may, for creditable reasons, be unable to remember what he said in the initial statement? I refer to the person with a history of mental illness, the person who suffers mental illness as a result of an assault, or the person whose mental state is declining because of dementia or Alzheimer's. Is the clause not a way to try to protect them, although the weight of their evidence will be difficult for the jury to assess?

Dominic Grieve: The hon. Gentleman makes a good and important point. I had hoped that the Minister would
 be able to help us, and that other provisions would cater for that. I would expect in the ordinary course of events that someone suffering from Alzheimer's or mental illness would not be put through the process of having to go into the witness box, and that their statements would be read out under other aspects of the hearsay provisions, which have existed for some time.
 One then thinks of those who appear to be truthful witnesses but who start saying things in the witness box that are at variance with their recollection. The ability of witnesses to refresh their memories from statements was previously denied them to prevent it becoming an exercise in recollection. I do not think that that ought to happen. 
 I take the hon. Gentleman's point; we may still need a clause on inconsistent statements, but this one appears to open another avenue: if a witness turns out to be hostile—the truth is that this will be used mainly by the prosecution—and gives evidence at variance with that he previously told the prosecutor, his statement to the prosecutor or the police investigator, and not what he said in the witness box, which flatly contradicts it, can be treated as the truth. That worries me. I wait to hear from the Minister.

Michael Wills: As I understand it, the heart of the hon. Gentleman's objection—he will correct me if I am wrong—is that a statement that is discredited should remain so. I remind him of what my hon. Friend the Member for Stafford (Mr. Kidney) said: it must surely depend on the circumstances of the discrediting. That is the key. In a moment, I shall give an example of domestic violence that might help the Committee better to understand what was in our minds when proposing the provision.
 The clause allows an earlier statement made by a witness that is inconsistent with his or her oral testimony at the trial to be used as evidence of the truth of its content. Under the present common-law rules, a witness may be cross-examined on an inconsistent statement made before the trial. If the witness accepts that the earlier statement is true, it can go in as evidence on the facts; but if a witness denies the truth of the earlier statement, for whatever reason, it reflects only on the truthfulness of his credibility as a witness. Fact finders may not treat it as evidence of the facts stated in it. That is clearly unsatisfactory.

Dominic Grieve: Why?

Michael Wills: I shall give an example, which I hope will help the hon. Gentleman understand why. We are looking for the truth. We are seeking justice, which must be based on the truth of what happened. I ask him to bear that thought in mind for a little longer, while I try to make my case.
 Where it is possible for fact finders to treat an earlier statement as true, why should they be prevented from doing so? We see no reason why they should be so prevented. If we can trust juries to decide whether a witness has lied throughout a trial and that they should therefore disregard his evidence, why should they not be allowed to decide that a previous statement is correct if they find it more convincing? That is their job. 
 In the light of such difficulties, the Law Commission recommended that if the witness admits that he made a previous inconsistent statement, or if it is proved that he did so, the earlier statement should go in as direct evidence of the truth of its contents. Clause 103 gives effect to that recommendation. It may help the hon. Gentleman if I give an example of a case involving serious domestic violence, which is often relevant in such circumstances as well as in those adduced by my hon. Friend the Member for Stafford. 
 Let us take a case involving serious domestic violence. Let us assume that the victim has said, contrary to an earlier statement, that the complaint that they were beaten up by their partner was completely made up. On cross-examination by the prosecution, having been declared a hostile witness, the victim is unable to explain away their serious injuries of which there is independent and reliable medical evidence. 
 Under clause 103, the fact finders would be able to convict if, despite the victim's denial of the previous incriminating statement—we all know from our constituency experiences that there are many cases of this happening—they were sure that the defendant had committed the assault charge. That would, of course, be subject to the court's power to stop a case if there were insufficient evidence to ensure a safe conviction. Surely, in those circumstances, the clause would promote the cause of justice, which we all want to see done. I ask the hon. Gentleman to reflect on that example and, indeed, that given by my hon. Friend the Member for Stafford. 
 I shall put the final nail in the edifice that I am erecting to reassure the hon. Gentleman. The proposal was recommended by not only the Law Commission but other common-law jurisdictions such as Australia and the federal courts in the United States of America, which have enacted those reforms. We are not aware of any problems as a result of those changes and we do not foresee any problems in the UK. On that basis, I commend the clause.

Dominic Grieve: I accept that we are only looking at the clause. I should be interested to learn about other examples from common-law jurisdictions, and I shall certainly go away and have a look at them. As we have been tending to do during the consideration of some clauses, we are making the most dangerous assumptions about what it is or is not possible to infer from factual evidence.
 Somebody might come to a court and state on oath, ''I retract everything that I previously said. My husband did not beat me up. I got the injuries by falling down a staircase.'' I fully understand the strength and force of what the Minister is saying. People may say, ''The victim has decided that she will not press charges.'' As we have to convict people on the basis that we are sure, in the absence of other not only supportive but probative evidence such as that of some other person who saw what happened, it is very dangerous to embark on a road of a series of contradictory statements, which show the person who gave them to be completely unreliable. 
 The danger is that what we choose to read into and select from the statement is the part that is most in accordance with the result that we wish to see, which, in the case of a battered woman, partner or wife, is a deep desire that justice should be done and that the perpetrator should be punished. If there is no proper foundation on which we can draw that conclusion because the principal complainant appears willing to say one thing on one occasion and one thing on another, in the absence of any other probative evidence, we run serious risks of miscarriages of justice.

David Cameron: I have been listening carefully to my hon. Friend's argument. If the evidence is admitted in such a case, we have in many ways to trust both the judge to give the correct summing-up and the jury to exercise its judgment on whether there is enough evidence to convict, despite what the victim has said. The judge will surely say, ''You have heard the victim give one statement. You have also heard a retraction, but you have seen the injuries. You have heard the supporting evidence. It is up to you to make a judgment on who is telling the truth.''

Dominic Grieve: My hon. Friend is right, and his point relates to a discussion that we have had on a number of other clauses: the trust-the-jury concept. We have discussed it, for instance, in relation to evidence of bad character. Why not let jurors know everything so that they can decide for themselves? If we do that, they will come to the right decision.
 I believe that juries can be reliable. However, the jury system has always worked in common-law jurisdictions on the basis that the material placed before a jury is of a kind that enables jurors to make a series of fairly straightforward choices. The Government have not departed from that entirely in the Bill, although they have moved the goalposts somewhat. If that changes, there is a risk that choices may be made, for perfectly understandable human reasons, on a basis that is not sound. 
 I agree with my hon. Friend that a judge who directs a jury properly will go a long way towards solving the problem. A problem in criminal trials nowadays is that directions from judges are becoming so complicated that the simplicity of jury decisions based on facts is becoming ever more obscured. Judges are required to engage in academic and intellectual exercises to ensure that they have given jurors every correct direction. 
 There is no more fertile field for success in the Court of Appeal than being able to show that the judge failed to point out this or that pitfall against which jurors were to guard themselves. In no situation is it more of a requirement that a judge give clear directions than one in which a witness has given an account that is inconsistent with their statement and the judge suggests that jurors should be allowed to rely on the statement and not on the account given live in the witness box.

Michael Wills: The only reason why I am so anxious to intervene is that I so hate to see anyone distressing themselves unnecessarily. The hon. Gentleman is
 obviously very unhappy about the measure, but he is winding himself up for no real purpose. I wish only to remind him of what I actually said. We are discussing a statement that was made and then retracted. That is significant.
 Incidentally, although I gave the example of domestic violence—our understanding of that very regrettable phenomenon is developing, and we know that far too many people have got away with committing serious crimes for far too long—we are by no means confined to that particular crime. I refer again to what my hon. Friend the Member for Stafford said in that respect. 
 We start with the fact that a statement has been made and then retracted. In giving my example, I was extremely careful to say that it would be relevant if there were independent, reliable medical evidence of injuries that the victim was unable adequately to explain. I desperately want to give the hon. Gentleman some reassurance. In his very elegant discussion of the perils that we might face, he overlooked my very careful remarks. I concluded by saying that the situation would, of course, be subject to the court's power to stop a case if there was insufficient evidence to ensure a safe conviction.

James Cran: Order. I take this opportunity to note that interventions are getting longer and longer. The Minister would have no difficulty in catching my eye if he wanted to make his original speech again.

Dominic Grieve: I listened carefully to the Minister. As I understand it, the inconsistent statements are those that are proved by virtue of sections 3, 4 or 5 of the Criminal Procedure Act 1865. I believe that I am right in saying that that is a process by which the prosecutor or the person who has called the witness chooses to cross-examine the witness themselves to highlight the inconsistencies. I do not refer to a previous inconsistent statement that may be examined by counsel for the other side. I refer to a decision taken by the advocate, normally the prosecutor, that what the witness has said is at such variance with his understanding of the position of the witness that he wishes to submit the previous statement, as has been done traditionally for the purposes of discrediting the witness. It would still be permissible for the evidence of that witness to be used and treated, with a direction from the judge, as if it were the truth.
 I appreciate what the Law Commission is trying to achieve, but it constitutes a staggering departure from normal principles. Perhaps I have spent too much time at the criminal Bar, but I fear that the provision is fraught with difficulty. However, we have had an opportunity to air the matter, and I dare say that it may be taken up in another place, if their Lordships think there is any merit in it. 
 Question put and agreed to. 
 Clause 103 ordered to stand part of the Bill.

Clause 104 - Other previous statements of witnesses

Dominic Grieve: I beg to move amendment No. 413, in
clause 104, page 62, line 24, leave out subsection (4).

James Cran: With this it will be convenient to discuss the following amendments:
 No. 414, in 
clause 104, page 62, line 30, leave out subsection (5).
 No. 415, in 
clause 104, page 62, line 32, leave out subsection (6).
 No. 416, in 
clause 104, page 62, line 36, leave out subsection (7).
 No. 417, in 
clause 104, page 63, line 3, leave out subsection (8).

Dominic Grieve: I do not want to take up much of the Committee's time because these are probing amendments designed to elicit a little more information from the Minister about this important clause. It is unclear to me how subsection (4) would operate in practice. That might be simply to do with the wording, although I have read the explanatory notes. Without more ado, I leave it to the Minister to explain how the clause would operate.

Michael Wills: I am grateful to the hon. Gentleman for giving me the opportunity to set out why we have taken the approach set out in the Bill. The amendments, which I accept are probing amendments, would limit the circumstances in which previous consistent statements could be used to supplement or support the oral testimony of a witness. The present rule against previous consistent statements was described by the Law Commission as illogical, inconsistent, prejudicial to the accused and arbitrary in scope, so one can take it that it is dissatisfied with the current position. It felt that there was no case for retaining the present law.
 The Government believe that the tradition that witnesses must give evidence in person is highly important, but so is the principle that relevant evidence should not be arbitrarily excluded in the search for truth. Ironically, previous statements may be used against a witness but cannot be used in confirmation of their evidence, even when it might help to give the court a better picture of events. We accept that it would alter the character of our criminal trials if too much documentary evidence were used. The attraction of the Law Commission scheme is that it provides that a statement will be admitted as evidence of the truth of its contents in cases in which it is likely to be helpful to supplement the witness's oral testimony. In other words, the statement will be admitted because there is a special reason to justify its admittance as evidence. 
 We believe that the main focus of the trial should remain on the oral evidence given by the witness, but we also agree that it would help witnesses to give better evidence if their earlier statements were made more widely admissible to supplement the evidence that they give at the trial. The witness will, of course, be available to be cross-examined on both the earlier statement and the oral evidence in chief. 
 The principle that earlier statements can be directly relevant to establishing the truth is recognised in most other common law jurisdictions, where the rules preventing their use have either been restricted or 
 abolished. For example, in Scotland, a witness's prior statement is admitted as evidence of any matter stated in it, if he adopts it as his evidence. The categories of admissibility in clause 104 were recommended by the Law Commission. They reflect the circumstances in which it is likely to be helpful to juries and magistrates to be able to take statements into account. 
 I shall take each amendment in turn to clarify our intentions. Amendment No. 414, on subsection (5), would enable a previous statement identifying or describing a person, object or place to go in as evidence of the facts stated in it. The current law is inconsistent in that it allows evidence to be admitted of the identification of the defendant by a witness out of court—for example, at an identity parade—but prevents the admission of evidence of a previous identification of an object such as a car number plate. Another anomaly is that a picture or sketch of a person may go in as evidence, but not the words used to describe that person. The Law Commission considered that that limitation might reek of serious injustice. We agree that it is not possible to justify allowing a witness to give evidence of prior identification, but not a prior description. Subsection (5) address those inadequacies. The law in Scotland has been amended so that evidence of previous description can be given, and most of those who responded to the commission's consultation favour a similar change here. 
 Amendment No. 416 deals with subsection (6). Out of court statements would be available to supplement oral evidence given by a witness if he or she could not reasonably be expected to remember a matter well enough to give evidence of it. That reform recognises the difficulties that many witnesses face in remembering details. It is sometimes unreasonable to expect them to recall all the detail that is involved by the time of the trial. As a result, the best evidence may be lost to the court entirely—for example, where a statement was written down by someone other than the witness and not checked by the witness. As Professor Spencer has said, the weakness in relying solely on oral testimony is that it requires us: 
''to accept two remarkable scientific propositions: first that memory improves with time; and secondly, that stress enhances a person's powers of recall.''
 He makes the point graphically—what a witness said soon after events is likely to be at least as reliable as evidence given at trial, and in some cases, more so. We acknowledge that there might be exceptions—perhaps the witness was in shock when he or she reported events. However, if there is any discrepancy between accounts, it is bound to help the courts to have both accounts before them as evidence. 
 There are other safeguards in subsection (4). First, the statement must have been made while events were fresh in the witness's memory. Secondly, the witness must have indicated to the best of his or her ability that the statement is true. Contradictory evidence could also be led about matters dealt with in the statement, just as it could with oral testimony. In cases in which the trial takes place some time after the events 
 in question, the statement might be crucial in providing details that the witness can no longer recall. Without the reforms, the courts in such cases would be deprived of any evidence at all. Similar provision exists in the United States' federal rules. The consultation that was conducted by the Law Commission favoured the reforms by a large majority. 
 Turning to amendments Nos. 416 and 417, we have already discussed our proposals for reforming the common law on recent complaints, so I shall not dwell long on them. The rationale for subsections (7) and (8) is that it will generally be helpful to the courts to know what the alleged victim said when he first made his complaint. The benefits apply to all cases in which there is a complaint; they are not limited to sexual allegations. If the complaint goes in as evidence, it should be admissible as to the truth of its content and challengeable in the same way as the complainant's oral evidence. 
 We believe that the changes will help witnesses to give their best evidence in court. As with all reforms to the criminal justice system, we need to ensure that adequate safeguards are in place. I hope that I have reassured hon. Members. Where the witness is available to testify, the previous statements will add to the oral evidence and will not replace it, and it will be possible to cross-examine the witness on both the earlier statements and the evidence in chief. Other safeguards include the court's power to exclude superfluous evidence and prosecution evidence that is unfair or prejudicial. Finally, the jury will not be able to take the statement with them when they retire to consider their verdict, unless the judge or all the parties agree. 
 In proposing the reforms, we are endeavouring to strike a balance between maintaining an exclusive emphasis on oral evidence and preventing relevant evidence from being kept from the fact finders. The reforms reflect the fact that it is wrong in principle for evidence to be kept from the court when it is of better quality than the oral evidence available at the time of the trial. The proposals would allow the court to see the full picture, and in doing so would reduce the risk of injustice. The reforms are widely supported, and bring the law in England and Wales in line with that of most other common law jurisdictions. I hope that the hon. Gentleman will withdraw the amendment.

Dominic Grieve: I am very grateful to the Minister. The topic is quite complicated, and I am especially grateful for the way in which he encapsulated it quite briefly. I wholly support the thrust of the clause, particularly in relation to what he said about the nonsensical idea that memory improves with time or that stress improves recollection. One has seen only too often in a court setting witnesses who are genuinely trying to tell the truth, but who are seriously handicapped by the problems of recollection in a stressful environment, even though the evidence is there from what they said to the police much earlier. I therefore have no difficulty in wholly welcoming the clause.
 The Minister has reassured me, so I do not need to go into the points that I had jotted down, and I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 104 ordered to stand part of the Bill.

Clause 105 - Multiple hearsay

Dominic Grieve: I beg to move amendment No. 418, in
clause 105, page 63, line 9, leave out from 'deceased)''' to end of line 9 and insert
'only a statement by a person to whom the original statement was made is capable of admission in criminal proceedings as evidence of a matter stated in the original statement (so that a statement by B, but not A, may be admitted as evidence of the fact that C shot the deceased).'.
 This is a probing amendment, although it would be a wrecking amendment if it was accepted, because it would completely remove the thrust of the clause. The clause is important, because it regulates the admissibility of multiple hearsay. The Minister will not be surprised to learn that the amendment was tabled in order to have some debate about whether multiple hearsay should be admitted at all. The clause makes it impossible to admit multiple hearsay for the purpose of proving what was stated in the original statement. The Minister made the point that the longer from an event a person is asked to recollect it, the less reliable their evidence is likely to be. In the same way, I think that he would probably have no difficultly in accepting the general premise that the more hands, mouths or brains an account has been passed through, the more likely it is that account will be distorted. 
 In ''Goodbye to All That'', Robert Graves wrote about a series of newspaper articles relating to the German invasion of Belgium at the start of the first world war. He tells of a German newspaper that said that when the news of the fall of Liège was heard, the church bells were rung in Germany and elsewhere. By the time the story had passed through four different newspapers, it was being reported as the priests being tied as living clappers to the bells of the cathedral, which were then being rung by the German troops. Even by the standards of Germany's bad behaviour in that campaign, that was somewhat exaggerated. 
 We should be careful about this. Multiple hearsay leads to situations that can become dangerous. I need some assurance from the Minister about how it will be handled in practice. It seems from the clause that multiple hearsay will be dealt with by relying on the judge's discretion to try to sort it out. I have some anxieties about the principle of allowing multiple hearsay in to prove something.

David Heath: Despite the Minister's strictures about the difficulties of recollecting something after a period of time, I am sure that the Committee will remember that we touched on that point briefly this morning when debating amendment No. 377. Although I cannot subscribe to the hon. Gentleman's amendment—as he said, it would undo the entire purpose of the clause—I tried to make it plain that we have serious concerns about its application. The Minister suggested this morning that he understood
 and perhaps shared some of those concerns. The propensity for distortion or inaccuracy in multiple hearsay is clearly much greater than it would otherwise be. The courts will, I think, have to take care in interpreting the clause. The Minister's guidance will assist us in understanding exactly how that care is to be exercised.

Michael Wills: I am happy to give what reassurance I can. As I said this morning, we accept that multiple hearsay is inherently more dangerous and more unreliable than first-hand hearsay. That is common ground. We cannot accept the amendment, for reasons that are clear to the hon. Member for Beaconsfield. It would prevent many business documents from being admitted as evidence simply because the information would have passed through several people in the course of the business. That is currently permitted under section 24(2) of the Criminal Justice Act 1988, and the Law Commission found that it was working perfectly adequately and without any difficulty. The amendment would be a retrograde step. However, I accept that it is a probing amendment, and with that in mind, I shall try to and reassure the Committee and set out what we intended to achieve.
 The clause sets out the circumstances in which an out of court statement will be admissible when it is considered to be multiple hearsay—in other words, as part of a chain of hearsay statements. We have to be extremely careful in approaching the subject. If Mr. Smith has died, it will clearly be impossible to challenge the accuracy of any statement made by him. The risk is that if such a statement passes through too many people it becomes unreliable or manufactured. For that reason, clause 100 generally prevents multiple hearsay from being admitted when the speaker does not have personal knowledge of the matter stated. That is consistent with the Law Commission's recommendations. 
 In certain circumstances, however, multiple hearsay in a chain of statements is considered reliable enough to be admissible in criminal trials; and clause 105 regulates those circumstances. It provides that where the original hearsay statement is admissible—by virtue of the unavailability of the witness under clause 100, or the common-law rules preserved by clause 102—the original statement cannot be proved by means of another hearsay statement merely because the maker of that other statement is unavailable to testify. It might help if I give an example, because those general propositions are complex. 
 If I am unavailable to testify because I am ill, my written statement cannot be used to prove Mr. Smith's hearsay statement, which itself would be admissible only because Mr. Smith was unavailable, or because of a common-law rule such as res gestae applied. If I wanted to tell the court that Mr. Smith had given me a description of an assailant but that he died immediately afterwards, I would be able to do so only by relying on the unavailability provision under clause 100 and appearing in court personally. However, if I, too, was unavailable, and the only evidence of Mr. Smith's statement was my witness statement, or the statement of another witness whom I had told about Mr. Smith's statement, that evidence 
 would not be admissible. That is because it would require the cumulative use of the unavailability exception—my unavailability as well as Mr. Smith's. The potential dangers of such evidence, such as faulty perception or memory, would be exacerbated. 
 However, clause 105 allows some hearsay exceptions to operate in a chain when the hearsay dangers can be effectively countered. If Mr. Smith's original statement was admissible as a business statement, an inconsistent statement or another previous statement, it would be allowed under the clause. 
 Let us consider another example to clarify the point. If both Mr. Smith and I were unavailable to give evidence in court, but I had recorded Mr. Smith's statement in the course of my business, in a business document, that document would be admissible as proof of Mr. Smith's statement. As earlier attempts to legislate on the issue, such as section 24 of the Criminal Justice Act 1988, have recognised, a business document is an inherently reliable form of evidence. 
 The formulation of the rule in clause 105 follows the approach that the Law Commission took in its report and draft Bill. We accept that the clause is more complex than many of the others in the Bill, but such a safeguard against multiple hearsay is necessary, for the reasons that hon. Members gave. The clause serves to distinguish the type of circumstances in which it may be appropriate to admit multiple hearsay from those in which the risks would simply be too great. 
 Multiple hearsay is more unreliable than first-hand hearsay, so it will normally be inadmissible. However, it may be admitted as evidence in the case of business documents, which are already admissible even if they contain multiple hearsay, or if it is a previous statement or previous inconsistent statement. I hope that that clarifies the situation.

Lady Hermon: The Minister was most persuasive about clause 104 when he referred to the practice in common-law jurisdictions, including Scotland. Can he name other jurisdictions where multiple hearsay, as defined in clause 105, is acceptable as evidence?

Michael Wills: I am afraid that I cannot be so persuasive off the top of my head. I shall conduct some research and write to the hon. Lady and other Committee members on that point.

Dominic Grieve: I am grateful to the Minister for his explanations on a subject on which, even after he has explained it, I still have difficulty at times in following how the court will apply the rules. I might say that that is not his fault but that of my addled brain at 4 pm on a Tuesday afternoon. Alternatively, it may be a problem that every lawyer will have to face as they confront this labyrinth.
 However, the Minister has reassured me that the worst excesses will not happen, although I had already ascertained that to my satisfaction. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 105 ordered to stand part of the Bill 
 Clauses 106 to 108 ordered to stand part of the Bill.

Clause 109 - Stopping the case where evidence

Humfrey Malins: I beg to move amendment No. 419, in
clause 109, page 64, line 41, leave out 
 'before a judge and jury'.

James Cran: With this it will be convenient to discuss the following amendments:
 No. 423, in 
clause 109, page 65, line 4, leave out 'jury to acquit' and insert 'acquittal of'.
 No. 424, in 
clause 109, page 65, line 5, leave out 'discharge the jury' and insert 'so order'.
 No. 425, in 
clause 109, page 65, line 7, leave out 'a jury is directed'.
 No. 426, in 
clause 109, page 65, line 7, leave out 'to acquit a defendant' and insert 'a defendant is acquitted'.

Humfrey Malins: It is worth spending some time on this clause. The explanatory notes tell us:
''Subsection (1) imposes a duty on the court to stop a case and either direct the jury to acquit the defendant, or discharge the jury, if the case against him or her is based wholly or partly on an out of court statement which is so unconvincing that, considering its importance to the case, a conviction would be unsafe.''
 I need to be convinced by the Minister that the clause is necessary, given the court's inherent power at any stage in the proceedings to form a view about the unconvincing nature of the prosecution case and to act on that view. Amendment No. 419 would ensure that the clause applied not only to judge and jury trials but to trials before magistrates or a district judge—formerly a metropolitan or provincial stipendiary magistrate—and also, in future, to trials before a judge alone in the upper courts, as we discussed earlier. 
 Although the explanatory notes say that the issue arises only in relation to jury trials 
''because in other cases, the finders of fact would be bound to dismiss a case in these circumstances'',
 that may be wrong. It is important to ascertain and understand the role of a judge in a case when the judge is with a jury and the role of, say, a district judge when trying the case alone. A district judge is a judge not only of the facts but of the law. In a judge and jury case, the judge retains the role of being judge of the law, and in that respect takes on all legal arguments. 
 In a case in the magistrates court before a district judge where the evidence is so unconvincing as to be worthless, for one of the reasons set out in the clause, one of two things happens. The defence advocate makes an application to the district judge that, as a matter of law, the case should not proceed, and that judge, wearing his or her legal hat, decides the issue of law—and the submission on that basis would be a submission as to the law; ditto in the Crown court 
 where a defence advocate makes the submission to the judge. The judge is in exactly the same position as the district judge in the magistrates court: he or she is the judge as to the law and hears submissions. There is no distinction between the judge's role in the lower court and in the higher court. Therefore, I cannot understand the explanation that the provision does not need to contain a reference to the district judge or the magistrate. 
 Amendments Nos. 423 to 426 are consequential on the point raised by amendment No. 419. It is possibly absurd, and certainly curious, to find the provision that the court must direct a jury to acquit 
''or, if it considers that there ought to be a retrial, discharge the jury.''
 How could a judge discharge a jury in such circumstances? If a judge discharges a jury, which is normally done when the jury is deadlocked and cannot reach a verdict, or sometimes if there has been jury contamination, the Crown can apply for a retrial. We all know some famous examples of that. When the judge has reached, following submissions, the conclusion that the evidence before the court is so unconvincing that, in simple terms, the case must not proceed, how can that judge have an option to say, ''This is goodbye to this case, because it is so feeble,'' or presumably to think to himself or herself, ''This is goodbye to this case because it is so feeble, but the Crown can have another go if it wants to''? That seems to me odd. I hope that the Minister will be able to help me on that point. 
 Finally, I do not understand any references to 
''the close of the case''.
 A later amendment may deal with this point, but it seems to me that, at both district judge and Crown court level, as an inherent jurisdiction, either upon application or of his or her own motion, the judge can form a view about a case at any stage. One can think of many examples where a judge might stop a case before the closure of the Crown case. For example, normally the last witness for the Crown is the officer in the case who has taken an interview, which might form a series of denials of the offence. Therefore, nothing further can come to add to the Crown's case, so the judge must, and does, have that option at any stage.

Michael Wills: I shall do my best to help the hon. Gentleman with his concerns. The clause imposes a duty on the court to stop a case and either direct the jury to acquit the defendant or discharge the jury if the case against him or her is based wholly or partly on an out of court statement that is so unconvincing that, considering its importance to the case, a conviction would be unsafe. That is clearly an important safeguard for the defendant against unreliable hearsay forming the basis of an unsafe conviction.
 There are existing powers for courts to direct an acquittal at any stage from the close of the prosecution case to the end of the trial.

Dominic Grieve: I assume that the clause has no intention of interfering with that power.

Michael Wills: I was about to clarify that point and to address some of the issues raised by the hon. Member for Woking.
 That discretion should be exercised rarely, but it is not limited to particular sets of circumstances. The duty in the clause builds on the existing powers. The Law Commission considered that the exercise of such a power should be clarified where unconvincing hearsay evidence has been admitted. What is the difference between the clause and the existing powers? This clause, like clause 91, builds on the court's existing powers to direct an acquittal where there is no case to answer, but those powers are discretionary. It ensures that, where unconvincing hearsay evidence has been adduced and admitted, and the safety of the conviction has been affected, the court must stop the trial. It does not prejudice existing powers; rather, it clarifies and tightens them up in relation to unconvincing hearsay evidence. 
 The amendments would extend the duty beyond cases involving a judge and jury to those in a magistrates court. I am wholly sympathetic to the hon. Gentleman's reasons for tabling the amendments, and we do not disagree with the principle behind them, but they are not necessary. The issues that the clause addresses do not arise in the same way in cases heard by magistrates, because—

Humfrey Malins: Why not?

Michael Wills: If the hon. Gentleman will be patient for 10 seconds longer, I will explain why not. The clause is intended to remove the danger of a jury placing too much weight on unconvincing hearsay evidence. If the magistrate came to the view that a conviction would be unsafe because the hearsay evidence was unconvincing, they would be bound to dismiss the case. In such circumstances, there is no danger of unfairness to the defendant.
 The hon. Gentleman specifically mentioned a retrial, and it may help him if I repeat that the clause does not require the whole case to be based on an out of court statement. Rather, it makes provision for situations in which only part of the case is based on a hearsay statement and where other evidence may be sufficiently compelling that it would allow the prosecution case to be properly mounted. In such instances, it would not be proper to continue with the existing jury, because it would already have heard the unconvincing out of court statement, and the judge would conclude that that any conviction based on it would be unsafe. However, in exceptional cases, it may be proper to order a retrial. The compelling evidence could then be heard and considered without the defendant's right to a fair trial being endangered.

Humfrey Malins: How could the existence of other, compelling evidence be consistent with subsection (1)(b), which refers to unconvincing hearsay evidence, saying:
''considering its importance to the case against the defendant, his conviction of the offence''—
 I assume that that means his conviction for the offence— 
''would be unsafe''?

Michael Wills: I can only repeat what I have just said. The hon. Gentleman must look at the whole case, because only part of the evidence may be based on such a hearsay statement. Clearly, some hearsay evidence may be so unconvincing that it would be unsafe to proceed with the trial, but that does not necessarily mean that it would be in the interests of justice to throw out other, compelling evidence, if it existed. In the circumstances that I have described, it should be right to order a retrial so that that compelling evidence can be heard without the taint of the unsound hearsay evidence.

Humfrey Malins: It is either one thing or the other, and the Minister must deal with the issue. If someone's conviction is unsafe, it is unsafe—that is the beginning and the end of the story. I do not understand how one can say that we should follow the clause, and that any conviction under such circumstances would be unsafe, but then permit a further trial. The conviction is either unsafe or it is not.

Michael Wills: I fear that we will just have to agree to disagree. I ask the hon. Gentleman again to consider cases that are based only partly on unsound hearsay evidence. This whole chapter deals with the particular issues that everyone accepts surround the very notion of hearsay evidence. If we apply the tests that relate to hearsay evidence in cases where only part of the case depends on it, those tests that apply to hearsay evidence but not to other evidence—

Paul Stinchcombe: Will the Minister give way?

Michael Wills: I will, after I have made a last attempt to convince the hon. Gentleman.
 In those circumstances, would it be in the interests of justice that the other compelling evidence should be precluded from being adduced in appropriate circumstances in a retrial? I fear that I may not have convinced the hon. Gentleman, but I am happy now to give way to my hon. Friend.

Paul Stinchcombe: Is the Minister envisaging circumstances in which a plethora of evidence could be adduced, some of which was tainted or prejudicial hearsay evidence that should not have been adduced, but that, if that evidence was removed and the other evidence put before a fresh jury, it might be compelling?

Michael Wills: That is exactly the case that I am trying to make. I am grateful to my hon. Friend for restating it. It may have persuaded the hon. Member for Woking—I fear not—but I hope that he has heard enough to withdraw the amendment.

Humfrey Malins: I have heard enough, but not enough to feel content. It will result in extra cost, time and trouble. We should get real, and picture ourselves in the Kingston Crown court, where unconvincing hearsay evidence has been given.

Dominic Grieve: An example might be of a complainant having gone into the witness box whose previous inconsistent statement had been admitted in evidence, in which she had categorically stated that no offence had been committed against her.

Humfrey Malins: That is a very good example. Let us link it with what might be called unconvincing evidence that is taken with other evidence that might be convincing—I think that that is what the Minister is talking about.

Michael Wills: Compelling.

Humfrey Malins: Very well, compelling. We are not able to convict someone before we have heard the evidence; but if it is powerful evidence, it should be put before the jury. What on earth is wrong with the judge doing what he would normally do, and telling the jury utterly to disregard A, B and C but to concentrate on D and E? Juries are often told that they should ignore certain matters that have been put before the court. If judges had to discharge the jury or order a retrial every time they thought that A, B and C were outrageous in terms of their evidential value but that D, E and F were terrific, we would be having retrials all the time. What is wrong with that specific power? Why cannot the jury be trusted to deal with a genuine direction about what is evidentially important and what is not?
 In any event, subsection (1)(b) is not happily phrased in its current form. It states that if 
''the evidence provided by the statement is so unconvincing that, considering its importance to the case against the defendant''—
 that is the significance of the provision— 
''his conviction would be unsafe''.
 If we permit ourselves to use those words, they must mean what they say. The Minister is looking to his officials—I am sure that they will write out some sort of response—but if the subsection states that a conviction would be unsafe, it will mean only mean what it says. It cannot mean anything else.

Simon Hughes: It seems to me that it would meet the hon. Gentleman's objection to substitute the phrase
''considering its importance to the case against the defendant''
 with ''this evidence would be inappropriate to include in the case''. It is the evidence that is important, not the case. If we could go back to saying that the evidence is unreliable and therefore inadmissible, it would leave the potential for other evidence to make the case provable. That may be what the hon. Member for Wellingborough was arguing for.

Humfrey Malins: Yes. I think I have made the point. The Minister clearly understands our concerns, and I ask him to consider them. There could be problems, and if the Minister could come up with something on Report to satisfy the hon. Member for Southwark, North and Bermondsey (Simon Hughes), my hon. Friends and myself, that would be progress. I remain unconvinced by the Minister's argument for not including the district judge and the magistrates; as far as I can see, they are fact finders.
 We have highlighted our concerns and we are troubled that the clause is limited to ''judge and jury'' instead of including the district judge and magistrates. I hope that the Minister will consider them carefully. Given that, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Humfrey Malins: I beg to move amendment No. 420, in
clause 109, page 64, line 42, leave out 'close' and insert 'opening'.

James Cran: With this it will be convenient to discuss amendment No. 427, in
clause 109, page 65, line 20, leave out 'close' and insert 'opening'.

Humfrey Malins: There is no need for the word ''close'': it should read ''at any time after the opening of the case.'' The jury already have the power to acquit at any stage, and I gave a graphic example of when that power was used before the close of a prosecution case. We do not need the words in subsection (3)(b)
''after the close of the case for the prosecution''
 It would read perfectly well as ''If on a defendant's trial before a judge for an offence the court is satisfied at any time that—''. That would give the court the wider discretion that it has now. It would be unfortunate if the court's discretion to do that were restricted until after the close of the case.

Michael Wills: Quite simply, amendment No. 420 is neither necessary nor desirable. It is important that the prosecution have the opportunity to present their case in full before the court and before we ask the judge to decide whether to stop a trial because a conviction arising from it might be unsafe. That is in line with the court's current ability to direct that there is no case to answer at any point after the close of the prosecution case. It is only after the prosecution have presented their full case that the court can consider whether, judging by the evidence adduced by the prosecution, the requirements of the clause have been fulfilled. If the court were satisfied at that point, or at any subsequent point in the trial, that, because of the unconvincing nature of the hearsay evidence and considering the importance of the evidence to the case, a conviction would be unsafe, the court must stop the case.
 To make such a direction before the end of the prosecution case would clearly be inappropriate. That would be the effect of the amendments. For example, evidence may be introduced that makes the fact that the hearsay evidence is unconvincing less significant for the prosecution case; evidence may also be introduced that adds weight to the hearsay evidence. It would be particularly difficult for the court to determine whether a direction to a jury would deal adequately with any issues raised by the admission of the article or statement before hearing all the evidence against the defendant. One must judge the matter in context, and we cannot see the context until the prosecution have completed their case.

Dominic Grieve: It is at least clear that the clause envisages the possibility that a trial may take place in future entirely on the basis of read statements, either because those statements have been agreed to some extent, or alternatively because they are admitted under the hearsay rule. No live witness will enter the witness box. The chances must be that the judge will have read the statements before he enters the court. Leaving aside questions of principle, I find it difficult to understand the Minister's objection to the amendment as it might save a great deal of time and money. If the judge were to say to the prosecuting counsel, ''The key statement is totally unconvincing; I
 certainly could not convict on that. You have nothing else to offer in this case, Mr. Grieve, and nothing could possibly change my mind about that,'' would it not be a more proper use of time for that judge to be able to stop the case at that early stage, rather than waiting another two days?

Michael Wills: I am always interested in what the hon. Gentleman says. However, we are still not minded to accept the amendments. The clause strikes the right balance between allowing the prosecution to present their full case and protecting the defendant from the effect of unconvincing hearsay evidence. I hope that the hon. Gentlemen will consider our position, as we consider everything that they say, and that they will not insist on the amendment.

Humfrey Malins: This is simply not satisfactory. I do not know who is advising the Minister and I do not know when he or any of his advisers last visited a court to see what actually happens. It would be helpful to know—no doubt there is all the time in the world—whether any of them has spent any time watching court proceedings in the past month, and if so, whether the Minister will answer this question: does the judge have the power now to stop a case before the prosecution case has finished? The answer is yes, of course he or she does. To say that the judge should have to wait until the close of prosecution, even though he or she is completely aware that there is nothing more of use to come from the prosecution is not only a great fetter on the judge but an absurdity in terms of wasted money and time.

Michael Wills: On a point of information, Mr. Cran. Given that I would like to respond—probably at greater length than an intervention justifies—can I intervene now or do I have an opportunity to respond in a moment?

James Cran: I am happy to make it clear that if the Minister wishes to make another speech, he has only to catch my eye.

Humfrey Malins: Or, indeed, as I sense a little movement, if the Minister would like to indicate in a brief intervention that he would like to think about the matter, that might shorten the proceedings.

James Cran: Let us get on.

Humfrey Malins: Okay, the Minister is not going to intervene. Does he deny that the court has the power to do as I said? He cannot, because it has and it does, regularly. My hon. Friend the Member for Beaconsfield made the point that the judge will ask the barrister whether he has made his best point or whether there is more to come. He knows that there is nothing else to come apart from a couple of tidying up statements from the Crown and the interview, which the judge has already read, in which the defendant says that he is not guilty. The judge is able to say to the Crown barrister that he does not want to spend another day and a half listening to the case if there is no more to come, therefore he exercises his powers to instruct the jury—or to direct himself as district judge—to say goodbye to the case. The Minister does not accept what happens in the world. The clause is very disappointing because it would upset existing practice.

Simon Hughes: The same happens in the defence case. There comes a time when the judge says something like, ''Mr. Hughes, is that your best point? Have you anything else? Then I need not trouble you any further.'' We have to allow the judge discretion to assess whether there is any prospect of the case making further progress. He can start to do that after the first piece of evidence has been given.

Humfrey Malins: Well, there it is. The Minister wants to respond, so I reserve my position on pressing the matter to a vote, depending on what he says.

Michael Wills: I am grateful to the hon. Gentleman for this fascinating insight into real life in Kingston and other courts. It has been helpful and instructive, but it misses the point. The point about the clause is not to have a general disquisition of court practice, interesting as it has been, but to discuss hearsay evidence. I am grateful to the hon. Gentleman for having been so efficient as to say that, on further consideration, he might withdraw the amendment. I will always consider everything that he says carefully, although I will not necessarily shift my view in the direction of his. I shall have one last go at persuading him that the clause is intended to relate to the production of hearsay evidence in court.
 Hearsay evidence is of a particular quality and type. We are trying to deal with that fact. It is not possible to assess the significance of the hearsay evidence in relation to the other evidence until the prosecution have produced their entire case. Hearsay evidence necessarily has a distinctive relationship to other evidence. That is why we have drafted a distinctive clause, based on recommendations from the Law Commission. My only concern is to try to make the hon. Gentleman happier about the issue. I hate to see people unnecessarily distressed, and I hope that the amendment can be withdrawn.

Dominic Grieve: The Minister has remained deliciously noncommittal on the question of the existing powers of the court to stop a trial prior to the close of the prosecution case. Has he been advised on that matter by his officials? Could he enlighten the Committee about it?

Michael Wills: I am being noncommittal because I am trying desperately—and obviously ineffectively—to draw the attention of the Committee to what the Government believe are the salient points. We could have interesting and learned discussions—I notice that the hon. Gentleman has a great fat tome open before him, and he is no doubt going to enlighten me on the chapter that he has been reading. I ask only that we address ourselves to the salient point, which concerns the relationship of hearsay evidence to other evidence. We believe that it is important that the prosecution should complete their case so that hearsay evidence can be judged in relation to all the other evidence. We have spent almost a whole day discussing the nature of hearsay evidence, and matters concerning quality and safeguards.

Dominic Grieve: Will the Minister give way?

Michael Wills: I will give way, but I should like finally, and increasingly desperately, to draw the Committee's attention to the importance of hearsay evidence. Because of the nature of hearsay evidence, the prosecution should complete their case. I hope that I have persuaded the hon. Gentlemen, but I fear not.

Dominic Grieve: In the course of his argument, the Minister said that the existing rules do not allow for the judge to stop the trial until after the close of the prosecution case. The Committee may be interested to know whether the Minister has been enlightened by his officials. Has he corrected what he said?

Michael Wills: I can only say that the Committee would no doubt be interested in many fascinating things. Whether Tottenham Hotspur will buy Michael Ricketts from Bolton is a fascinating point to me and no doubt to many other members of the Committee. Nevertheless, the salient point is that the Committee should agree to the clause, which provides that the prosecution should finish their case before a decision is made about whether hearsay evidence is unsound. That is a perfectly sensible proposition, and it is all that the Committee is being asked to consider. We have made our case. I do not think that I can add anything more.

David Heath: I took a fairly neutral position at the start of the debate. I was not entirely persuaded by the argument of the hon. Member for Woking, although I was interested in it. Having listened to the Minister, I am completely convinced by it. I find it very difficult to follow the Minister's line of argument. I am happy that we do not afford to Committee Chairmen the same power that we give to judges to stop debate early.

Lady Hermon: I draw the hon. Gentleman's attention to subsection (4), which states:
''This section does not prejudice any other power a court may have to direct a jury to acquit a person of an offence or to discharge a jury.''
 Surely that deals with the anxiety that the hon. Member for Beaconsfield expressed earlier.

David Heath: I think that it would do, except that it underlines the philosophical nature of what we are discussing. It seems to exclude the possibility of stopping a case when the main plank of evidence on which the prosecution depends is so unconvincing as to merit the discharge of the jury. Given that a judge may form that view, it would be perverse if he or she were not entitled to call the case to a halt at an earlier stage, even when he or she knows, as judges often do, that the prosecution have nothing of value to add to their case. That position would seem to be extraordinary, and I am entirely convinced by the argument so tellingly put by the hon. Member for Woking.

Humfrey Malins: The Minister has been badly advised. He has had to play a difficult hand of cards, and when one has a hand consisting of twos, rather than tens or aces, one must play them anyway. I hope that he will go away and deal himself a better hand before Report. His response was charming but utterly unconvincing, so I want to press the amendment to a vote.
 Question put, That the amendment be made:—
The Committee divided: Ayes 8, Noes 11.

Question accordingly negatived.

Dominic Grieve: I beg to move amendment No. 421, in
clause 109, page 64, line 43, leave out paragraph (a).

James Cran: With this it will be convenient to discuss the following amendments:
 No. 422, in 
clause 109, page 65, line 1, leave out 'provided by the statement' and insert 'against the defendant'.
 No. 428, in 
clause 109, page 65, line 21, leave out subparagraph (i).
 No. 429, in 
clause 109, page 65, line 23, leave out 'provided by the statement' and insert 'against the defendant'.

Dominic Grieve: The Minister has actually answered the questions that these probing amendments were designed to explore, concerning the interrelationship between these provisions and the general power to stop a trial. I believe that he said that the general power would remain in place, and on that basis, I need probe no further. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

David Heath: Very briefly, has the Minister considered, at any time during the drafting of the clause, whether it would be appropriate to transfer some of the powers available to the civil court to the criminal court, to enable it to apply some sanction or penalty against the prosecution when their case is unconvincing and based on flimsy evidence? That might concentrate the minds of those who present inadequate prosecution cases.

Michael Wills: I cannot give the hon. Gentleman an exact answer, because I am not familiar with all the preparations that were made for the Bill. However, we are considering that area more widely. I shall write to the him, because I do not want to mislead him about what has been considered when, and I shall send a copy to other Committee members.
 Question put and agreed to. 
 Clause 109 ordered to stand part of the Bill.

Clause 110 - Court's general discretion

Dominic Grieve: I beg to move amendment No. 400, in
clause 110, page 65, line 32, leave out 'may' and insert 'must'.

James Cran: With this it will be convenient to discuss amendment No. 430, in
clause 110, page 65, line 33, after 'stated', insert
'(even though it might otherwise consider the statement admissible under section 98(1))'.

Dominic Grieve: The clause deals with the court's general discretion to exclude evidence. Subsection (1) states that in
''criminal proceedings the court may refuse to admit a statement as evidence of a matter stated if''
 it is hearsay and if 
''the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence.''
 If that is the case, and the criteria under paragraph (b) are satisfied, I am at a loss to see why the court should still be given the residuary discretion to allow the evidence to be admitted. That is why the amendment proposes to substitute ''must'' for ''may''. In view of the wording of subsection (1)(a) and (b), I can think of no occasion when the judge is likely to come to a contrary conclusion, so ''must'' is the appropriate term. 
 Amendment No. 430 relates to the interrelationship between the clause and clause 98(1). It appears that there is a potential internal contradiction between the two clauses. It is much more of a probing amendment.

Michael Wills: I hope that I can reassure the hon. Gentleman on both points. In providing a power to exclude evidence that is more likely to waste the court's time than assist it, our intention is to ensure that the courts have adequate powers to control the admission of hearsay evidence, not just where it would be unfair to admit it, which is dealt with in subsection (2), but otherwise as well. As I said before, we are constantly striving to strike a balance between clarity and flexibility. Being absolute about when the power in subsection (1) is to be exercised will not strike that balance and is neither necessary nor desirable.
 Although we would expect it to be very rare for the courts not to exclude evidence if the conditions in subsection (1) are met, there might be some circumstances in which that would be appropriate. For example, it might be appropriate in order to satisfy a defendant who insisted that certain evidence should be heard. Being absolute provides no room for manoeuvre should unexpected circumstances arise. The Government think that it is desirable to retain the flexibility. 
 As the hon. Gentleman said, amendment No. 430 is a probing amendment. It is superfluous because the power to exclude applies only to evidence that is otherwise admissible. If the evidence is inadmissible, there is no question of its going in and the power to exclude it is therefore unnecessary. It follows that, even without the proposed additional wording, the 
 power to exclude will apply only to evidence that is otherwise admissible. 
 I hope that that clarifies matters for the hon. Gentleman and that he will not press the amendments to a vote.

Dominic Grieve: As an Opposition Member, it is my lot in life to keep on coming across the words ''may'' and ''must'' in virtually every clause of the Bills that I consider, which are usually criminal justice Bills of one kind or another. I spend my life trying to persuade the Government to turn ''must'' into ''may'' and vice versa. Whichever way I propose it, successive Ministers come along and argue powerfully that the conversion cannot be made. I am wholly unconvinced by the Minister's arguments, but I rely on the good sense of the judiciary to ensure that the provision does not cause a massive problem. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Humfrey Malins: I beg to move amendment No. 399, in
clause 110, page 65, line 38, leave out 'substantially'.

James Cran: With this it will be convenient to discuss the following amendments: No. 431, in
clause 110, page 65, line 39, at end insert
'(and, where the statement is tendered by the defence, of the impact of its exclusion on the fairness of the trial)'.
 No. 402, in 
clause 110, page 65, line 39, at end insert
'and
(c) by admitting it the defendant would not receive a fair trial'.

Humfrey Malins: Sometimes one rises to speak to an amendment that one cannot remember drafting. The longer I stand here, however, the more I realise why I drafted it, which has given me time to get straight to the point—just.

Desmond Turner: Hesitation.

Humfrey Malins: Yes, hesitation or deviation.
 Amendment No. 399 is a probing amendment. I wonder whether the Minister might take the view that we need to have to balance the burden on the Crown with the burden on the defendant in the courts. In any case, the burden of proof is on the prosecution, where it must remain, and the standard of proof is very high. Omitting the word ''substantially'' would make the playing field slightly more level. A court can currently refuse to admit a statement if it is satisfied that the danger in excluding it substantially outweighs the case for admitting it, which gives the Crown a slightly stronger position than ought to be the case. If one argument outweighs another, it does not have to do so substantially in order to be the winning argument. The amendment's purpose is to shift the balance slightly more in favour of the defendant than would be the case if the word ''substantially'' were left in. That is the amendment's purpose, and amendments Nos. 431 and 402 follow the same general thrust.

Michael Wills: I understand why the hon. Gentleman has drafted the amendments, which he has explained very well. We believe that they are unnecessary and will resist them, but I shall try to explain why in some detail, because they concern important issues of principle.
 Clause 110 enables a court to exclude hearsay evidence, which is otherwise permissible, if on balance the evidence is more likely to waste the court's time than assist it in determining the issues in a case. In other words, the clause is aimed at weak evidence that adds little to a case but would not make a trial unfair. Evidence that would cause unfairness would be excluded under section 78 of the Police and Criminal Evidence Act 1984, which, as clause 110(2) clarifies, applies to the evidence. 
 As I have mentioned, the clause is not about evidence that would cause a trial to be unfair. Instead, it deals with evidence that could be fairly admitted but is more likely to waste the court's time than to assist it, which is why the amendments are misconceived. In its 1996 report, the Law Commission stated that evidence that the prosecution seeks to adduce may still under our proposals be excluded by the court in the exercise of its discretion at common law or under section 78(1) of the Police and Criminal Evidence Act 1984. 
 That does not, however, cover superfluous evidence, which would not make a trial unfair, and there is no control on the quantity of defence hearsay evidence. The new power to exclude superfluous hearsay would be available in relation to all hearsay evidence that would otherwise be admissible under our recommended scheme. We envisage that the exercise of this power will be appropriate only in exceptional cases where the probative value of the evidence is so slight that almost nothing is gained by admitting it. This power will help the opposing party and also ensure that the court's time is not wasted, thereby meeting the point, which concerned some respondents on consultation, that the admission of hearsay would lead to a lot of barely relevant evidence being adduced. 
 The new requirement in amendment No. 402 that admission would cause an unfair trial for the defendant is not therefore appropriate in the context of subsection (1). Evidence that did not meet that condition would be excluded under section 78 of PACE or the common law. The clause is concerned about wasting the court's time with a wide range of hearsay evidence that is unnecessary and, as the Law Commission said, is so slight that almost nothing is gained by admitting it. 
 Amendment No. 431, which relates to the question of fairness when the defendant wishes to adduce a statement, is unnecessary for a different reason: it would be contrary to the court's most basic duties to ensure a fair trial if it were to exclude evidence that a defendant wished to tender in circumstances in which it would create unfairness. The amendment is therefore superfluous. 
 On the other hand, amendment No. 339, which would omit the word ''substantially'' in subsection (1)(b), puts the emphasis on a greater exclusion of relevant material. The effect would be that where the 
 balance was just in favour of exclusion, the test would be met and the evidence excluded. That is overly restrictive, given the fact that we want more relevant evidence admitted and that such evidence would not cause unfairness. The intention is to catch only evidence that does very little for the case. 
 I hope that that sufficiently clarifies the matter for the hon. Gentleman to withdraw the amendment.

Humfrey Malins: No and yes, possibly not in that order. I am grateful to the Minister and I will not press the amendment to a Division. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

David Heath: I beg to move amendment No. 378, in
clause 110, page 65, line 45, after 'otherwise)', insert
'including the power to exclude prosecution evidence where its prejudicial effect outweighs its probative value.'.
 The explanatory notes on the clause state: 
''Subsection (2) preserves both the existing common law power for the court to exclude evidence where its prejudicial effect outweighs its probative value and the discretion contained in section 78 of the Police and Criminal Evidence Act 1984 in relation to the admission of unfair evidence.''
 The second part of that sentence is explicit in respect of subsection (2)(a), but less explicit in respect of (2)(b). The Government have a firm intention, but paragraph (b) simply refers to: 
''any other power of a court to exclude evidence at its discretion''.
 That is a sensible provision in itself, but it could produce some confusion, particularly when it is read with clause 102(2) as intimating that the common-law rule, which is expressly mentioned in the explanatory notes, might not be preserved as a result of the Bill. Our intention is that by making it explicit, there is no element of doubt that the rule survives the earlier culling process and that it remains as described in the explanatory notes. The Minister agrees that it should survive and there is no difference in our intention. The question is simply whether the Bill as drafted is sufficiently explicit in expressing that intention.

Paul Stinchcombe: Do not the words of the clause as drafted explicitly mean that every discretionary common-law power to exclude evidence survives?

David Heath: That might be the intention and I do not disagree with the hon. Gentleman, but we must be at pains to ensure that it is understood that the power, to which the explanatory notes draw attention, is part of the common-law rules that survive. That is not specific in the earlier clause. If there was a clear interplay between the two, it would not cause concern. The concern that I express is not entirely my own, but is the concern of others much better qualified than I am to consider these matters, and they have said that there is an element of doubt. I believe that, if there is an element of doubt, the Bill should be explicit rather than implicit, and I hope that the amendment will provide a remedy to that.

Michael Wills: I am slightly baffled about why there should be an element of doubt. As my hon. Friend the Member for Wellingborough said, subsection (2)(b) refers to
''any other power of a court''.
 However, I am happy to offer the assurance that the clause covers those provisions. I hope that, on that basis, the Committee will accept that no amendment is needed.

Dominic Grieve: I subscribed to the amendment, but as that assurance has been put on the record, I am broadly satisfied that there is no need to pursue the matter further.

David Heath: That was precisely the point of tabling the amendment: so that the Minister could say the words that he has just said. He has now said them, so I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 110 ordered to stand part of the Bill. 
 Clause 111 ordered to stand part of the Bill.

Clause 112 - Confessions

Dominic Grieve: I beg to move amendment No. 401, in
clause 112, page 67, line 13, leave out 
 'on the balance of probabilities'.
 The clause provides for dealing with confessions. In particular, subsection (3) says: 
''Before allowing a confession made by an accused person to be given in evidence for a co-accused in any proceedings, the court may of its own motion require the fact that the confession was not obtained as mentioned in subsection (2) above''—
 that is, not obtained by oppression or in consequence of anything else— 
''to be proved in the proceedings on the balance of probabilities.''
 The amendment would delete the reference to the balance of probabilities and require the confession to be proved. I am not sure whether, in practice, that would make a huge difference, but the reason for tabling it is to enable us to examine the issues raised by the clause. 
 As I understand it, the provision relates to the possibility of a co-accused's confession being brought before the court on the application of a co-accused for his own purposes in circumstances where the accused may at some stage have claimed that that confession was improperly extracted from him. That raises an interesting and complex tangle of possibilities. I wondered whether the balance of probabilities was the correct test, although I acknowledge that, generally speaking, on a voir dire, if one were seeking to exclude evidence, that might be the proper test to apply. I should be grateful if the Minister would explain how he expects the provision to work.

Michael Wills: I have some sympathy with the hon. Gentleman. Clearly these are difficult cases. It is possible to imagine a scenario in which a group of defendants might seek to coerce the weakest member of the group into confessing that he or she has committed the crime, so that they can escape justice. However, I am sure that the courts will always be alive to that risk, and the judge will surely wish to satisfy himself, before the confession can go in, that it was obtained voluntarily.
 It is also a well-established principle that, whenever the accused bears a burden of proof, in no case should 
 he or she be called on to prove an issue beyond reasonable doubt. The standard of proof is on the balance of probabilities. That principle has applied when the court needs to satisfy itself on an issue before a certain piece of evidence can be admitted. For example, when the defence currently seek to admit a hearsay statement under the Criminal Justice Act 1988, it need only prove that that requirement is met on the balance of probabilities. The Law Commission examined the issue and concluded that the lower standard of proof should be applicable to the defendant. 
 I have listened to the hon. Gentleman, but I am not persuaded that it would be right to make such a change. We have carefully considered the issue and I hope that he will be persuaded to withdraw the amendment.

Dominic Grieve: Yes, I am. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

David Heath: I beg to move amendment No. 524, in
clause 112, page 67, line 24, leave out paragraph (b).
 This is a probing amendment designed to give the Minister the opportunity to explain what is meant in subsection (4)(b). I assume that it means that graphological analysis—handwriting analysis—of a confession could be adduced. It might also cover patterns of speech without considering the content, but any matter that actually provided evidence of content would be excluded, the purpose being to examine the physical or idiomatic characteristics of a confession, not the actual substance of what was said. If that is what is meant, I am sure that the Minister will be able eloquently to explain it to me in order to persuade me to withdraw the amendment.

Michael Wills: I shall set out our thinking behind the clause. I have a rich example from 1918 involving Belgians, which I hope will clarify the matter.
 Following a change in the common law in 1996, a confession by one defendant can be relied on by a co-defendant in the same case, even if the prosecution cannot rely on it, provided that it was made voluntarily. In those circumstances, the confession can be used by the co-defendant to show that he did not commit the crime, although it will not be evidence that the defendant who made the confession is guilty. 
 The Law Commission recommended tidying up that area of the law, so that instead of a requirement that the confession be ''voluntary'', the requirements of section 76 of the Police and Criminal Evidence Act 1984 should apply. In that case, the confession could be relied on by the co-defendant only if it was not obtained by oppression or inducement. That is entirely sensible. Even where a confession is excluded under section 76 in a standard case—where the prosecution want to rely on it—section 76 enables the prosecution to rely on certain things derived from the confession. Those are: facts discovered as a result of the confession, and use of the confession to show that 
 the accused speaks, writes or expresses himself in a particular way. 
 In applying section 76 to confessions used by co-defendants, the Bill retains those exceptions so that such material may still be admissible even if the confession itself is not. Amendment No. 524 would remove the exception that allows the use of the confession to show that the accused speaks, writes or expresses himself in a particular way. However, we believe that that exception serves a useful function in respect of confessions that are inadmissible for the prosecution, and we have no reason to doubt that it would also be useful in the context of co-defendants. 
 A confession may reveal—this goes to the heart of the hon. Gentleman's concern—more than what is asserted in it, and it should continue to be possible to admit those other factors in evidence. That principle is derived from the old case of Voisin in 1918, in which the defendant misspelt the words ''bloody Belgian'' in a particular way, and that note was admissible to demonstrate that the defendant had written a similar note on a parcel containing the body of his victim. 
 To quote ''Blackstone's'', an eminent authority on the criminal law, 
''Section 76(4)(b) might be used, for example, in a case of rape, where a tape-recorded confession is ruled inadmissible, but the voice of the accused can be heard speaking with an usual speech impediment which was also described by the victim, or with a particular local accent.''
 If evidence of that sort is properly admissible under section 76 for the purposes of confessions used by the prosecution, we see no reason to delete the exception where the evidence is to be relied on instead by a co-defendant. I hope that that clarifies the position and gives the hon. Gentleman the reassurance that he needs, and that the amendment can now be withdrawn.

David Heath: I am always persuaded by arguments that involve Belgians. That is a sure-fire tactic. I am grateful to the Minister. He has explained the circumstances in which the subsection would operate, and I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

David Heath: I beg to move amendment No. 525, in
clause 112, page 67, line 37, after 'includes', insert 
 'but is not necessarily limited to'.
 This is a probing amendment, to allow us to understand how far the Government feel that the term ''oppression'' may extend. As it is drafted, subsection (7) includes 
''torture, inhuman or degrading treatment and the use or threat of violence (whether or not amounting to torture)'',
 but there are various other areas of duress or harassment that would not fall into such categories. It would be useful if the Minister could give a working definition of what might be construed as oppression within the meaning of the clause, given that the wording is meant only to give an indication.

Michael Wills: I understand what the hon. Gentleman is getting at, but we do not think that the amendment is necessary. It seeks to clarify the fact that the definition of oppression is not exhaustive. As the clause says that
 it ''includes'' torture and so on, it is clear that it is not exhaustive. The definition uses the same wording as section 76(8) of the Police and Criminal Evidence Act 1984. The courts are well used to applying that definition and the meaning is understood. In the case of R v. Fulling it was suggested that oppression under PACE was to be given its ordinary dictionary definition, which is:
''The exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc; the imposition of unreasonable or unjust burdens.''
 I hope that, with that clarification, the amendment can be withdrawn.

David Heath: We now have a dictionary definition on the record. That is extremely helpful and will answer any future queries. On that basis, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 112 ordered to stand part of the Bill. 
 Clauses 113 to 118 ordered to stand part of the Bill.

Clause 119 - Armed forces

Question proposed, That the clause stand part of the Bill.

Simon Hughes: It would be helpful if the Minister would explain a matter that is significant when armed forces matters are in the public domain, where trials and so on have slightly different procedures. What will remain as significant differences between the two procedures after the Bill is enacted? It would be helpful to know, because we do not yet have an entirely parallel system. Concern is increasing that the same rights and entitlements should apply, regardless of whether people are appearing under armed forces or civilian jurisdictions. This may be the best opportunity to get that on the record.

Michael Wills: I understand the sensitivities of that important question, and I hope that the hon. Gentleman will allow me to write to him, setting out the position at some length.
 Question put and agreed to. 
 Clause 119 ordered to stand part of the Bill. 
 Schedule 6 agreed to. 
 Sitting suspended. 
 On resuming—

Clause 120 - Repeals etc

David Heath: I beg to move amendment No. 526, in
clause 120, page 70, line 24, at end insert— 
 '(1A) In the Criminal Procedure and Investigations Act 1996 (c.25), in Schedule 2 paragraphs 1(4) and 2(4) are repealed.'.
 Whenever it has suited Members on either side of the Committee, the Law Commission, the Select Committee on Home Affairs or both have been 
 prayed in aid. This is an instance when I intend to do both. In report No. 245, the Law Commission said: 
''We recommend the repeal of paragraphs 1(4) and 2(4) of Schedule 2 to the Criminal Procedure and Investigations Act 1996.''
 That was recommendation 21. Those paragraphs, which relate to statements and depositions respectively, both say: 
''If a party to the proceedings objects to sub-paragraph (2) applying the court of trial may order that the objection shall have no effect if the court considers it to be in the interests of justice so to order.''
 When the Home Affairs Committee considered the Law Commission's view, it said: 
''We agree with the Law Commission's view that 'cross-examination . . . should be dispensed with only where it is necessary to do so'. We therefore share its concern about the effect on the hearsay rule of Schedule 2 to the Criminal Procedure and Investigations Act 1996. We invite the Government to take this opportunity to repeal the offending paragraphs of Schedule 2 to the 1996 Act, as recommended by the Law Commission, or to explain its reasons for not doing so.''
 I have a perfect opportunity to invite the Government to do exactly as the Home Affairs Committee suggested, or to explain their reasons for not doing so.

Michael Wills: There has clearly been some misunderstanding about whether the corresponding provisions in schedule 2 to the 1996 Act will be repealed by the Bill. I am therefore extremely grateful to the hon. Gentleman for giving me the opportunity to clarify our intentions in that respect. We have accepted the Law Commission's recommendations on the issue. We intend to repeal the hearsay exceptions in schedule 2 to the 1996 Act. We are resisting the amendment today, but only because we believe that it will be much easier to deal with the matter in the context of the repeals that relate to allocation procedures, in part 6 of the Bill. However, I give the hon. Gentleman the assurance that we understand and welcome his concerns, and shall table an appropriate amendment. I hope that that gives him the reassurance that he needs to withdraw the amendment.

David Heath: I could have ended this Committee day on a very high point indeed if the amendment had been accepted by the Minister. He said that he would not do so, but that he would do what I asked. That is pretty close to achieving success in Committee, and therefore I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 120 ordered to stand part of the Bill.

Clause 121 - Evidence by video recording

Simon Hughes: I beg to move amendment No. 527, in
clause 121, page 71, line 18, leave out 
 'it appears to the court' 
 and insert 'the court is satisfied'.

James Cran: With this it will be convenient to discuss the following:
 Amendment No. 529, in 
clause 123, page 72, line 22, after 'if', insert 
 'the court is satisfied that'.
 Amendment No. 530, in 
clause 123, page 72, line 27, after 'Where', insert 
 'the court is satisfied that'.

Simon Hughes: The amendments raise two points. First, subsection (3) deals with the direction to be given by the court under subsection (1)(f), which refers to the
''direction that the recording should be admitted as evidence in chief of the witness, and the direction has not been rescinded''.
 Under subsection (3)(b), the current proposal is that that direction 
''may be made only if it appears to the court that—
(i) the witness's recollection of the events in question is likely to have been significantly better''.
 If someone has recorded an incident with a video camera and believes that the film would aid their recollection, the clause allows the film to be produced as part of the evidence. The witness may say that although they were present—on the pavement, for example—they would rather rely on what is on the film than on their recollection of events. 
 The purpose of amendment No. 527 is slightly to raise the threshold for when video evidence would be acceptable. The change in wording would require the court to decide, using a decently high test, that the film would be more reliable or sufficiently reliable evidence. Those comments apply also to amendment No. 530, which would require the higher test for documents and statements made earlier. 
 Everyone who works in criminal courts knows about recollections of what someone said earlier—it is almost a joke. It is often the first evidential point with which students deal. The police officer refers to notes, normally written in their notebook, which we shall discuss in a later debate. The inevitable question, ''When did you make that note, officer?'' is followed by the inevitable answer, ''At the first available opportunity after the event.'' The purpose of the amendments is to ensure the strength of the evidence and to ensure that the court is satisfied rather than simply testing on a balance of probabilities. 
 My second point is about clause 123. Again, we propose the same test. The first is for videos, and the second is for documents or statements. I am easily pleased at this point in the proceedings, knowing that we are nearing the end of the run, although my hon. Friend the Member for Somerton and Frome has done all the work today. If the Minister would consider our reasonable arguments, I would be satisfied. The amendments were tabled simply to probe why the words in the Bill have been used as opposed to the alternatives that we have suggested.

Michael Wills: I understand entirely why the hon. Gentleman proposed the amendments and have some sympathy with his approach. However, it is important to recognise why the chapter is in the Bill. Although it has the rather mundane heading of ''Miscellaneous and supplemental'', in many ways it goes to the heart of why we wish to reform the criminal justice system.
 We want to rebalance the system in the interests of victims and witnesses, and the provisions are key to helping witnesses give the best evidence. It is crucial to ensure that rules of evidence do not artificially prevent the true and full story from being presented in court, and the provisions in chapter 3 will make it much easier for witnesses to give their evidence.
 Clause 121 will allow a video-recorded statement to stand in place of the witness's main evidence in important cases, and clause 123 will give witnesses wider access to their statements so that they can refer to them when they give evidence. The main objectives of the reforms are to improve the position of witnesses giving evidence, and to ensure that courts have the best evidence available to them and that the rules of evidence assist in providing full and accurate accounts. 
 I hope that every member of the Committee understands how important the new provisions are. Video evidence can be extremely valuable for all witnesses, not just those who are young and vulnerable. I am always prepared to review decisions, but I must disappoint the hon. Gentleman by resisting the amendments, because they do not help the process that I have described. 
 Amendment No. 527 would require the court to be satisfied that the witness's recollection of events was better when his account was video-recorded than it would be at the time of trial before a recording could be admitted. Amendments Nos. 529 and 530 would require the court to apply a similar test before allowing a witness to use his statement or a transcript of an interview to refresh his memory. We do not think that those changes are necessary or desirable. They would create unnecessary work for a court in testing the powers of witnesses' recall before allowing them access to straightforward measures to assist them in giving their evidence. 
 Under clause 121(3), a video recording of an interview with a witness can replace the witness's main evidence if it appears to the court that his recollection of events is likely to have been better when the recording was made than by the time of the trial. That is intended to be no more than a common-sense test—one that the vast majority of witnesses would meet, unless there were particularly traumatic or unusual circumstances surrounding the recording of the statement.

Dominic Grieve: An issue arises to be considered, does it not? Obviously, where a witness gives a statement to the police and it is video-recorded, it may be difficult to ascertain the extent to which he has been led in giving that version of events. It may, or may not, be apparent from the surrounding circumstances. However, what would happen when there was at least some evidence that leading questions had been asked to extract the information? Presumably the video evidence would fall foul of the fact that leading questions had been used to elicit it. How could that be reconciled with giving evidence in a witness box?

Michael Wills: The hon. Gentleman is raising a slightly different point.

Dominic Grieve: It just arose in my mind.

Michael Wills: I am delighted that it did. I shall try to deal with it. However, the whole purpose of giving evidence, whether recorded on video or in any other way, is that it can be evaluated properly in court. To that extent, video evidence is no different from any other evidence. It would be completely evident whether the witness had been led. The normal tests and safeguards would apply. The potential problems are not connected with the nature of video recordings, but are far more to do with the questions alluded to by the hon. Member for Southwark, North and Bermondsey about how high a hurdle must be cleared before the evidence can be admitted.
 The difference between us is simple. We believe that the hurdle should be lower. We are applying a common-sense test. The majority of witnesses will meet it. The normal safeguards of scrutiny and testing of evidence will be available, and courts will make their own decisions. We do not believe that it is necessary for the court to be satisfied—indeed, it would be an unduly onerous requirement. 
 As to the refreshing of memory, clause 123 is intended to create a presumption that witnesses in criminal proceedings may refresh their memory from their statement. They may do so if they say that the document represents their recollection at the time when they made it, and their recollection was likely to have been significantly better at the time the statement was made. That presumption reflects, as I said at the beginning of my remarks, the Government's manifesto commitment to give witnesses access to their statements while they give evidence. It also reflects the fact that witnesses have unfettered access to their statements outside the courtroom. It would undermine that presumption, and create unnecessary legal argument, if the court were required to be satisfied on the issues before it would allow witnesses access to statements or transcripts. The common law does not require that at present and we are not convinced that anything further is needed in the relevant cases. 
 I hope that I have given the hon. Member for Southwark, North and Bermondsey enough reassurance to enable him to withdraw the amendment. I assure him that, whatever happens, we shall continue to reflect on this and other matters.

Simon Hughes: I shall reflect on that, and shall seek leave to withdraw the amendment. However, the intervention by the hon. Member for Beaconsfield makes it logical for me to make the point that I was saving up for clause stand part. One of the concerns that has arisen in the context of video recording—and I appreciate that the clause is not about video recording of defendants, although the issue arises in that regard too—is ensuring that the court gets the whole picture.
 Clause 122 will allow the court to consider whether part, but not all, of a recording may be admitted. Two relevant circumstances must be considered. First, part of a recording of, for example, your good self, Mr. Cran, is made and shown, yet somebody argues that he wants to see all of what you said on the day of the recording. Secondly, as the hon. Member for Beaconsfield said, people often say in court, ''Yes, I said that, but it was in answer to question X.'' 
 When they ask questions, police officers and other investigators do not necessarily remember all the rules about not leading answers. They ask factual questions such as, ''Did you see somebody coming around the corner? Was it a man or a woman? Was the person tall or short? Was the person black or white?'' That is how evidence comes out. It does not take much imagination to see that an investigator can ask half of those questions by saying, ''Was it a man? Was he tall? Was he white?'', although, effectively, he is asking a series of leading questions. 
 What should now be the expected practice in those circumstances? I shall withdraw the amendment without prejudice so he is on safe ground. Is it expected that the whole of the recording would normally be shown in court unless both sides agreed that not to be necessary? Tautologous, repetitious or irrelevant material could easily be discarded. This is all about getting people to give evidence more contemporaneously, and in a more suitable and relaxed environment than a court—an interview room, for example. Therefore, will the film normally be of the interviewer as well as the interviewee, or of the interviewee only? 
 For audio recordings nowadays, the tape is set to run and both people are recorded; one does not segregate the two. It is important that one hears both the interviewee and the interviewer. Until recently, the technology meant that people used to debate whether the tape had been tampered with. However, technology has vastly improved, so one will hear question and answer, question and answer, and be able to determine whether any funny business is going on. If somebody screamed in the middle of the interview for no apparent reason, it might be that pressure was being applied. 
 I do not have a final view, but my present view is that it would be better practice generally for videos to have the same characteristic. A video can be well made using static cameras to film both the questioner and answerer. I shall be grateful to receive any indication that that is the Bill's intention. 
 If that is the case, I am absolutely signed up to the benefit that the provision will have for witnesses and victims. There is every merit in people immediately after the event and in a more comfortable environment—be it their home, an interview suite or a police station—participating in an interview, which is then produced at court. They do not have to endure all the trauma of the evidence-in-chief that a court appearance constitutes. Yes, they will still have to be cross-examined. They will still be asked, ''Is what you said on 21 November still what you believe?'', to which they may reply, ''Yes, that's my recollection. I do not wish to change it.'' However, it is a help for victims and witnesses to be able to do that.

David Heath: I have listened carefully to my hon. Friend. Is not one of the perverse areas of advancing technology that one can identify discontinuities on film easily? However, digital recording methods are not excluded under clause 124, and it is difficult to assess whether evidence in that form has been tampered with.

Simon Hughes: That is a very good point. If proceedings are to be opened up to new sorts of evidence, we want to ensure that the procedures are more user-friendly and that we have protections. We also want to avoid time being taken in legal argument, with lawyers saying, ''Yes, my client did say that, but in response to a question that you have not shown. That is the only reason why he said what he did.''
 I would be grateful if the Minister could give us a steer by telling us whether there will be practice directions and whether the procedures will be governed by the Police and Criminal Evidence Act 1984 or something else. I ask that in ignorance, and I hope that the system will work well on the basis of such evidence. At the same time, I want to ensure that safeguards are built in, so that lawyers do not advise their clients against becoming involved in these procedures, for fear that that may prejudice them later.

Dominic Grieve: If I may, I shall take the opportunity to discuss an issue that has been raised, and doing so now may save time. It is linked to issues raised by clause 123, which relates to using documents to refresh memory. It may be helpful to discuss it now and to return later to the discrete issues raised by the clause.
 Things always jump out as one reads a Bill, and I intervened on the Minister because of my growing realisation that, leaving aside hearsay, more and more evidence is likely to be given in court by indirect means. First, there will be video recordings not only of victims but, potentially, even of witnesses, which will show what they said when they were interviewed by the police. Secondly, documents will be used to refresh a witness's memory, and he will be shown his previous statements. 
 I, for one, have no great difficulty with that in principle, because giving evidence should not be an obstacle course. It can be helpful to recall evidence by looking at it or playing a video of the first version of a witness's statement to the police. At the same time, the Government must accept that at no stage in the Bill's passage has it been suggested that the ordinary rules of questioning should be changed. Central to those rules is the fact that one cannot ask leading questions of one's own witness. 
 The difficulty that I foresee with the clause—this applies just as much to clauses 122 and 123—is that it will often be difficult to ascertain whether comments made on video, or those that led to a person's original statement, which will be used to refresh their memory in the witness box, were induced by leading questions. I am not talking about a sinister conspiracy by those who originally investigated the offence, but my experience is that the police and other investigators often use leading questions when questioning a witness and trying to compile a witness statement or, for that matter, a video. 
 Such practices may be glaringly obvious in the case of a video, because the unedited version will show everything that transpired between the investigator and the witness, and one may pick up the overall flavour of what was said and the extent to which the witness was led. However, it may be much more 
 difficult when a document is used to refresh a witness's memory, as set out in clause 123. Those who wish to cross-examine a witness may therefore have considerable difficulty ascertaining whether he was induced to say anything and whether the jury is seeing an induced version of events, which results from the way in which questions were asked. To illustrate for the Minister that this is not some esoteric point, I shall give an example from my own experience. 
 My house was burgled in 1994, and, by good fortune, I tracked the burglar down to the house of a fence about 200 yards from I where lived. The fence was in residence, and everyone involved was arrested. The time came for me to go to the police station and give a statement to the police officer—it was the only time that I have ever had to do so in that setting. The police officer was very keen not to reveal the fact that the upstairs neighbour had let me into the property so that I should see the blood smears on the front door of the fence's house, which had occurred because the burglar had cut himself when on the property. He wanted to cut out that bit of the story, and the result was that the statement that he produced did not reflect what I had said. 
 The motives of the police officer may not have been proper, but he then did something even more improper. Having realised that I was becoming a stickler for the facts and that I would be unwilling to sign the statement in the form in which he had written it, he picked it up, looked at me and said, ''We'll get rid of that'', and tossed it in the wastepaper basket. The Minister will of course be aware that that unused material could and should have been preserved to be handed over to the defence. We then produced a proper statement. As it happens, I was never called to give evidence, and I think that the burglar was sentenced to a term of imprisonment. 
 That classic case brought home to me the fact that the police, perhaps for quite honourable reasons, were leading me in the making of the statement. They wanted the statement to be in a particular form in order to protect another witness whom they wanted to keep out of the picture. The police were concerned for his safety in view of the reputation of his ground-floor neighbour who had been arrested. 
 The defence could face difficulties when such evidence comes to be used as a tool in court—whether it be a video or a statement. Those acting on behalf of the defendant will be trying to cross-examine witnesses—they are entitled to ferret around, to see what they can find—but they will be handicapped by not knowing whether the proper rules of questioning were being observed. I do not have a solution to that conundrum. 
 One point that I make fairly forcefully is that guidelines will have to be issued to investigators to point out that potential pitfall and the necessity that statements should be given without leading comments being made. For a variety of reasons, however, I am not confident that that will happen. That may prove to be a serious handicap, because questions will constantly be raised about the manner in which those statements were originally made. I put that to the Minister now because it will save time when we 
 come to clause 123, but it is something that his Department will have to consider.

Michael Wills: I shall start with the two concerns raised by the hon. Member for Southwark, North and Bermondsey. The first was on the exclusion of digitally recorded evidence, statements and so on. We are about to debate amendments tabled by the hon. Gentleman that go straight to the heart of the matter, so rather than repeat myself, I shall save those comments for later.
 The hon. Gentleman and the hon. Member for Somerton and Frome went to the heart of the reliability of such evidence. The hon. Member for Beaconsfield, too, raised concerns about leading evidence. We should be clear about the technical problems, real or imagined, and the work that is under way to deal with them. I reassure the hon. Member for Somerton and Frome, who was concerned that it was easier to fiddle with digital evidence than with film. He is technically correct, but doing so is incredibly difficult and enormously expensively. It is possible to get over what in the trade is called a jump cut, but it can be done only with an enormous amount of expensive digital fiddling. It is now possible, but one cannot imagine any scenario in which it would be done. Such fiddling is much easier when dealing purely with audio recordings, as one can edit and slice virtually unnoticeably, but it is very difficult with visual material. I hope that that gives the hon. Gentleman some comfort. 
 At the heart of this issue is whether the interviewer and the interviewee are both seen. Facilitating that is common best practice, but there are trade-offs. Inevitably, one does not get quite such a tight view of the interviewee, so one cannot evaluate the body language so precisely. None the less, that is the current best practice, and we firmly intend it to continue. I hope that that also addresses the concerns raised by the hon. Member for Beaconsfield about leading questions. I shall come in a moment to whether anything can be excluded, which I hope will see off the hon. Gentleman's concerns. However, I hope that the fact that we will see the questioner as well as the witness being questioned will reassure all hon. Members.

Simon Hughes: May I push the Minister a little further? There is clearly a difference between best practice and the point that the hon. Member for Beaconsfield and I made—whether guidelines, codes of conduct or other things would have statutory force. It would be better if the practice were governed by a code of practice or a code of conduct that can be shown to be the norm by which everybody is expected to behave.

Michael Wills: The hon. Gentleman raises a good point. The straight answer is that we are in the process of developing a protocol. Technology has evolved extremely quickly, and most courts are not yet equipped to deal with it, although they shortly will be. We must be ready for it. A programme of work is already under way to ensure that the courts can have confidence in the new technology. The Home Office is consulting widely on a protocol that will guide the police and the courts, and which should be followed when they are handling digital material. I welcome the
 Committee's views on how that can best be achieved. The issues that hon. Members have raised are solvable. The gains from getting witnesses to testify and the quality of their evidence could be enormous.
 The hon. Member for Beaconsfield asked a question that relates to clause 123 and the presumption that we want to create when a witness—

James Cran: Order. I hope that the hon. Member will leave that matter until we come to clause 123.

Michael Wills: I was about to ask the hon. Gentleman's leave to postpone my reply until we do so.

James Cran: The hon. Member does not need his leave.

Simon Hughes: Postponing that discussion is helpful; it avoids going over the same ground. I want to make two final points.
 First, as MPs and from experience of television interviews, we recognise the benefit of the full-frontal picture: one can watch somebody's body language, notice their nervousness and so on, and although only the back of the questioner's head can be seen, the whole commentary can be heard. There is no need for a sideways view of both the interviewee and the interviewer; the questions come, as it were, from the power of the camera. There are various ways to derive evidential benefit from a film, just as one can from somebody giving evidence in a court, where people can see the person, their demeanour and so on. 
 Secondly, I should be reassured if, perhaps by the time we reach Report and after consulting colleagues, the Minister could say that these welcome new processes—I understand the argument for them—will be governed by something that covers all those who regularly investigate. Occasionally, a film that has been shot by a member of the public—perhaps a wife interviewed a husband—will be introduced as evidence for some reason, although that will be the exception.

Michael Wills: Having reassured the hon. Gentleman, I do not want to wind him up again. It is important to be clear about the matter and I do not want anybody to think that we are endorsing the scenario that he gave, as that would be misleading. The practice of filming over somebody's shoulder is open to abuse, because the viewer cannot see the person's mouth moving. It would be possible—it would rarely arise, and I do not want anybody to be misled—to play a different audio over the back view of the speaker. It is important that a film should be shot in such a way that it is possible to see the mouth moving; that is key. It is difficult to interfere fraudulently with a film—with digital technology, it is not impossible, but it is still difficult—if the mouth can be seen, which was the concern of the hon. Member for Somerton and Frome. The major protection is that the viewer sees the mouths of both parties.

James Cran: Order. Mr. Wills, you are making the speech again. We shall return to Mr. Hughes.

Simon Hughes: I was trying to be conciliatory. However, I accept that the best practice is to see both, so the Minister's arguments are appreciated. I shall
 leave it with him and his colleagues to try to reassure all of us. If we could have a code of practice or of conduct to regulate such evidence—just as there is for identity parades—that would give a clear way forward. The court would have a gold standard to go by, it would become common practice and witnesses would know where they stand and be reassured. On that basis, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 121 ordered to stand part of the Bill.

Clause 122 - Video evidence: further provisions

Simon Hughes: I beg to move amendment No. 528, in
clause 122, page 72, line 5, leave out paragraph (b).
 This is a probing amendment about partial, as opposed to total, video film being shown. Paragraph (b) is the second of two cumulative parts of subsection (3). Currently, in considering whether part of a recording should be not admitted—leaving the rest admitted—the court must consider two things. The first is 
''whether admitting that part would carry risk of prejudice to the defendant.''
 As the clause is drafted, the Government are changing the risk to the defendant by saying that, in spite of that, the court might consider that 
''the interests of justice nevertheless require it to be admitted in view of the desirability of showing the whole, or substantially the whole, of the recorded interview.''
 That is a theme that the hon. Member for North Down and others have reiterated throughout our debates. Can one have a fair trial if the risk of prejudice to the defendant, which the court is required to avoid, can be discarded by changing the rules to bring in part of a film? 
 I am concerned that the inclusion of subsection (3)(b) might mean that we will end up with something that the judge would decide is prejudicial to the defendant. We can all think of scenarios in which that would apply. There are occasions on which a film that might have been filmed over an hour or two has been chopped up and still includes things that the prosecution have argued should not be there. However, for reasons that would appear only in the defence case, they might be relevant. The defendant or a witness might think that they should be included. What appears to be a throwaway statement, such as, ''I was very tired that morning,'' or ''I had just left home at six o'clock,'' could appear to be irrelevant. The danger is that they might become relevant, but one does not know that at the time. 
 The trouble is that, as court proceedings unroll, decisions are made at the time on the evidence. Once the evidence is in the public domain, and this applies much more to a jury case than a magistrates case, one cannot stop a jury being aware of it. All a judge can do in such circumstances, if he decides that a mistake has been made, is to call a halt to the trial. He may decide that there is no longer a chance of a fair trial because 
 the jury have heard evidence that they should not have heard. They have seen half of a film when they should have seen it all, or vice versa. I raise the issue in an inquiring way. I am concerned that it risks prejudicing the right to a fair trial. That is a right that we all want to preserve and that we are obliged to preserve under the European convention.

Michael Wills: Of course I understand the hon. Gentleman's concerns, but accepting the amendment could lead to some very unwelcome consequences. I agree that we must be careful. Consider the following scenario: admitting part of a statement might result in a slight or marginal risk of prejudicing the defendant; however, that may be substantially outweighed in the interests of justice by showing the video recorded evidence in full. If one part was excluded it might be harder for the jury to understand other parts of the recording. There are a great many circumstances in which that might happen. It may be important in understanding how a witness is developing the evidence. There are times when that slight risk of prejudice is substantially outweighed.
 The fact that this is an interests of justice test provides adequate protection for the defendant's interests. When the court considers that the risk of prejudice to a defendant is particularly acute, it would not consider it to be in the interests of justice to admit a statement. However, solely to frame the test around prejudice would ignore all other pertinent considerations. The test would also focus entirely on the court's reasons for excluding the evidence. Courts could find that a difficult test to apply, as there is no indication of the considerations that would support the evidence being admitted. It is instead desirable to make it clear to the courts what the balance of considerations should be in this context. Parliament adopted a balance of those factors for video recorded evidence in the Youth Justice and Criminal Evidence Act 1999. For that reason alone, it would be highly undesirable to have two tests for the courts to apply to very similar situations. 
 I hope that I have reassured the hon. Gentleman and that he will feel able to withdraw the amendment.

Simon Hughes: I will reflect on that. Let me leave the Minister with two thoughts. Prejudicial evidence could be left in if a witness was making a recording and said for example, ''I know that Michael Wills; he is a funny bloke. I know him; he is not to be trusted.'' That would clearly be prejudicial, although it does not mention previous convictions or other obvious prejudicial matters.
 The second consideration is that one of the benefits of having pre-recorded evidence in court is that everybody knows what is coming up. One of the reasons that one of the most famous trials of last year did not succeed was that the key witness in the Damilola Taylor trial did not say what she was expected to say. That happens in many cases. The evidence falls short of being proof and the case is much weaker as a result. One of the benefits is that one knows what they will say because one has seen the evidence and the film beforehand. It seems that there is every advantage in having as much of that stuff as possible agreed, because it will save the court time in 
 not having to listen to arguments between lawyers and not having to send the jury out to argue about the evidence. However, without agreement on both sides, there could be arguments about whether all or part of the film should be included. That would undermine the advantage of the earlier process. I shall reflect on the Minister's comments, but we must ensure that we gain, in terms of improved criminal justice, without the disadvantage of triggering a whole set of other complications that would not save time in the long run. I beg to ask leave to withdraw the amendment.

Michael Wills: I beg to move amendment No. 466, in
clause 122, page 72, line 8, leave out subsection (4).
 The amendment corrects an unfortunate drafting error. Clause 122(4) cross-references the definition of prejudice with a definition in clause 96(2). However, as hon. Members will have noticed, there is no such corresponding definition in clause 96.

Simon Hughes: Scandalous.

Michael Wills: No, just an unfortunate drafting error.
 The amendment will remove the cross-reference. The notion of prejudice is one with which the courts are familiar and one that they apply to a range of circumstances, so there is no need for a statutory definition.

Dominic Grieve: I was about to ask a question. Presumably, the Government had originally decided to include a definition of prejudice in clause 96(2) but subsequently decided not to. Will the Minister enlighten us on why that was?

Michael Wills: I am sorry; the hon. Gentleman was obviously so busy reading his papers that he did not hear what I said when I explained why we took that decision. We did it because the notion of prejudice is one with which the courts are already familiar. I hope that that enlightens him.
 Amendment agreed to. 
 Clause 122, as amended, ordered to stand part of the Bill.

Clause 123 - Use of documents to refresh memory

Dominic Grieve: I beg to move amendment No. 432, in
clause 123, page 72, line 25, after 'been', insert 
 'substantially reliable at that time and'.

James Cran: With this it will be convenient to discuss amendment No. 433, in
clause 123, page 72, line 32, leave out from 'been' to 'than' in line 33 and insert 
 'substantially reliable at the time of the previous account, and significantly better at that time.'.

Dominic Grieve: I have already identified my general concerns about refreshing one's memory from notes, but the amendment relates to the narrower issue of the test for when a witness should be allowed to refresh his memory from notes while in the witness box. The test set out in the Bill is that
''he states in his oral evidence that the document records his recollection of the matter at that earlier time, and his recollection of the matter is likely to have been significantly better at that time than it is at the time of his oral evidence.''
 This is a probing amendment in respect of the phrase ''significantly better.'' It suggests an improved formulation. I want to explore what questions will be asked of the witness in the witness box to ground his right to look at the statement. I suspect that it will turn out to be a ritualistic and formalistic phraseology, such as, ''Is that your witness statement?'' ''Yes it is.'' ''On what date did you make it?'' ''Three days after the incident.'' ''Was your recollection at that time significantly better than it is now?'' ''Yes.'' ''Can he please read from his statement?'' ''Yes.'' 
 Should that process examine whether the evidence that the witness gave at the time can be relied on, because I suspect that that will be explored at some stage in the process? That ties in with my earlier comment. I am worried not about the intention of the provision, with which I wholly agree, but because I think that it will turn out to be an enormously fertile field of cross-examination, which, far from simplifying proceedings, could make them more complicated. Defence barristers, who will be the principal people involved, would be constantly probing the circumstances in which the original statement was made. They would try to suggest that the original statement was made as a result of leading questions or at a time when the reliability of the witness might be called into doubt. At present, those things do not normally happen in that way. I wanted to flag that up, because I am trying to help the Minister. I would like the system to work, but it is not without problems.

Simon Hughes: It would be helpful to know whether there is currently a code of practice or conduct that governs the writing of statements, particularly by those in authority. Again, this is such familiar ground to anybody who has ever been to a court at which police officers are being cross-examined as to when they made their statements, which are traditionally in notebooks. The issue that arises most frequently—the hon. Gentleman hinted at it—is whether the person making the note did so before they had the opportunity to discuss the events with other people. Discussing events can result, as if by magic, in two notes made by two people appearing to be almost identical. That ground is covered regularly in the courts. One can understand why such statements do not have a ring of truth about them, because no two people would write about the same events in exactly the same way.
 The amendment is about substantial reliability. Is the technological state of advancement not such that, in the interests of saving the time of the police, Customs and Excise and people who carry out investigations, the job could be done using hand-held dictaphones? Police officers could have their own, and as soon as they finished the job, they could spend about a minute recording what they had seen, rather than spending an hour back at the police station writing it all out. If that happened, it would be much more likely to be the officers saying it for real. In addition, the procedure could be tracked much more quickly: the machines and tapes could belong to the person in question so that they could be put in a place 
 and marked. Of course, there are eyewitnesses, but that could be streamlined. 
 In the modern world, if we are trying to get police officers on the street and out of the station, the two things that would make the biggest difference relate to their making their own statements and their taking statements from witnesses. I think that 95 per cent. of the time civilians should take such statements. If they did, police officers could come back and decide whether they had any other questions. Leaving big, serious cases aside, most of the key questions relate to what time of day it was, where the person was coming from and going to, who was there and so on. One does not need a police officer's training to be able to elicit that information from somebody. It is a serious proposition if we are really trying to save time. 
 I have spent too many hours of my life in police stations watching police officers type on typewriters and computers at about an eighth of the speed that I could manage—and I am by no means the world's quickest typist. Clearly they are not the most competent people to be doing what a secretary, who does that sort of thing all day, could do very quickly. I have also seen officers writing laboriously into notebooks. There might be a dubious background in that the officer could have checked with the other two officers at the scene so that they all have similar things in their notebooks, which means that there will be much discussion about the evidence at the trial. Will the Minister give us any steer as to whether what I propose is the practice anywhere? Has it been piloted? Could it be piloted? For the investment undertaken, it would save hours and hours of police time and it would also save a lot of time in court.

Michael Wills: I entirely understand why the amendments have been tabled and I understand the hon. Gentleman's concerns. I was surprised by the way in which the hon. Member for Beaconsfield developed his case, which seemed to undercut his amendment. He is worried about the proliferation of the legal industry, which his amendment would encourage.

Dominic Grieve: I said that it was a probing amendment, designed to focus on that issue. I accept the Minister's argument that if we embarked on an exercise to look into the state of mind of those making statements, the investigation would be lengthy. Lengthy investigations are, however, likely to happen when statements are being used in that way, which is why I was trying to highlight the issue.

Michael Wills: In that case, we are on common ground in agreeing that the amendment should not be pursued. The clause is intended to create a presumption that a witness may refresh their memory from an earlier statement, which seems to us to be a reasonable proposition. The hon. Gentleman's concerns are not new, and we want to clarify the position and the circumstances in which witnesses may refresh their memories. A witness can do so if they indicate that the document represents their recollection of a particular matter at the time at which they made the statement. Their recollection is likely to have been significantly better at the time at
 which the document was made. That provision is sensible and important, and we agree that the amendment will clearly not work.
 I do not accept that the hon. Gentleman's worries will necessarily come to pass. We do not believe that they will, and the interests of justice are better served by allowing the clause to stand. 
 Turning briefly to the points made by the hon. Member for Southwark, North and Bermondsey, I remind him that the circumstances in which a statement is made can be scrutinised and tested in court. In his disquisition on the subject, he adduced evidence of such scrutiny in court, which is a key safeguard. He concluded by making an extremely valuable point about the gains from new technology, which is precisely why the Government are investing £1 billion in new technology for the criminal justice system. I assure him that we are doing our level best to ensure that we get all the benefits that we can possibly derive both in the areas that he has suggested and in a vast range of other areas. The potential gains are enormous. 
 I conclude on that happy note, and invite the hon. Member for Beaconsfield to withdraw the amendment.

Simon Hughes: I hope that the Minister will take away my idea, look at it and let me know whether it is already in use. If it is not in use, would he be willing to pilot it?

Dominic Grieve: The guidelines for the police will require examination if the problems that I have tried to highlight are to be avoided. Having said that, I hope that I have made it clear that I support the principle, which I set out earlier today, of being able to refresh one's memory from one's statement. Such a system should work well provided that it does not lead to time being taken up by an examination of the circumstances in which a statement was produced. We need to lay down some rules, which the police should follow when they help people to make statements. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 123 ordered to stand part of the Bill.

Clause 124 - Interpretation of Chapter 3

Question proposed, That the clause stand part of the Bill.

David Heath: I simply want to explore with the Minister the definition of oral evidence. People with speech defects, which are often caused by degenerative illnesses or cerebral or spinal trauma, are reliant on speech synthesis or some other electronic prosthesis. That does not seem to be included in the normal definition of ''oral'' or the extended definition that includes writing or signs. I wonder whether we need to update our definition of what comprises oral evidence.

Michael Wills: I confess that, as I had not realised that the hon. Gentleman intended to speak on the clause, I had moved on. While I was trying to find my place in the Bill I am afraid that I missed a substantial part of
 what he said. I shall write to him when I have consulted Hansard.

David Heath: It is a very quick point.

James Cran: Is the Minister giving way?

Michael Wills: I was giving way to the hon. Gentleman, but if he would rather save the Committee's time by allowing me to write to him, I should be delighted to do so.

David Heath: I would love to save the Committee's time, and I shall gratefully take up the Minister's offer.
 Question put and agreed to. 
 Clause 124 ordered to stand part of the Bill. 
 Clause 125 ordered to stand part of the Bill. 
 Further consideration adjourned.—[Mr. Heppell.] 
 Adjourned accordingly at twenty-six minutes past Six o'clock till Thursday 30 January at ten minutes past Nine o'clock.